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*FAMILY LAW INFORMATION

Divorce / Separation

 Alimony

Child Support

Custody


Divorce / Separation

Do I need to hire an attorney?
Yes. Having an attorney will help you navigate difficult and potentially complex issues related to your certain situation.  An attorney will also provide you with the most up-to-date client case law and protect your best interests. 

How will my assets be divided?
Asset division is equitably divided and determined by Massachusetts law, which considers numerous factors in separating assets between parties. Factors include length of the marriage, health of either party and marital status of either party. Assets are not always divided equally. 

How and where do I file for divorce?
You file for divorce in the county in which you live and/or the county in which your spouse and/or child/children live. The safest place to file is the county in which the marital home is located (the assumption is one party still occupies that home).  For example, if you lived as a married couple in Newton, in a home you rented or owned, but one person moved to Plymouth, the appropriate place to file for divorce would be Middlesex County, where the marital home is located.

What should I do if I just received divorce papers?
When receiving divorce papers, the first thing you should do is try to remain calm and reach out to friends, family for support. You will have 20 days after being served with divorce papers to provide a response.

Is there anything I can do if I don't want a divorce?
Massachusetts is a no-fault and fault jurisdiction. Therefore, if your spouse decides to file for divorce and you do not want to get divorced, there is nothing you can do to prevent divorce; however, marital counseling, therapy and reconciliation can still be possible, even after someone files for divorce.

Alimony

How is alimony determined?
New alimony laws have just been enacted in Massachusetts.  If there are minor children involved in the divorce case, and the potential alimony recipient has custody of the children, a child support order can have an impact upon the amount and duration of alimony. As to alimony itself, there is a basic formula that directs the amount of "general term alimony" should be between 30 to 35 percent of the difference between the parties' gross incomes. But there is also consideration given to the recipients' level of need, in addition to the parties' employment, health and age.  The length of general term alimony depends on factors that include the length of the marriage, and it will almost always end when the party paying alimony retires. The court, however, can adjust or alter the criteria for alimony as it deems appropriate. There are also different categories of alimony that can be applied, depending upon the circumstances: in marriages of under five years', "reimbursement alimony" (to compensate the spouse for contributions toward education or job training) or "transitional alimony" (to help the recipient move or adjust their lifestyle) may be ordered. "Rehabilitative alimony," which is paid until a date the spouse is expected to be self-sufficient, is another option. Each option has specific qualifications and limitations -- choosing one form of alimony can impact or altogether eliminate others -- and it is imperative that you thoroughly review the particular circumstances of your case with an attorney. 

My ex-spouse's income has increased since the order to pay alimony. Am I able to get my alimony amount raised?
First, you will have to look at the kind of order you have. If your case was tried in a courtroom, and the judgment ordering alimony does not say otherwise, your alimony could be increased if there is a significant change in circumstances that would convince a judge modification is warranted. If your case was settled by an agreement, however, go back and look at the language that talks about "merger" and "survival" of the agreement. Aspects of the agreement that survive are generally non-modifiable unless there is a very extreme change in circumstances that would, for example, leave you in danger of becoming a ward of the state. Aspects of the agreement that are merged can be modified in the future if you demonstrate a significant change in circumstances. Under the new alimony law, however, there is the potential that your ex-spouse could ask the court to change an existing alimony order by reducing its amount or length of time.  An existing, surviving judgment ordering alimony is still not modifiable, but you should consult with a qualified attorney who is familiar with alimony to determine your status under the new law.   

Will my alimony payments end if I move in with a new partner?
Under the new legislation, the court will have discretion to determine whether your alimony payments will end altogether, be suspended temporarily, or be reduced in amount if you live with someone in accordance with criteria set out in the new law.  These criteria include living with someone longer than three months, your economic interdependence with your companion and the community reputation of you and your companion as a couple. It is possible that any reduction or suspension of your alimony payments could be re-instated if your cohabitation ends, but the original termination date of the alimony order stands.

Child Support

Do I need to pay support and if so, how much?
Generally, child support is paid by the non-custodial parent to the primary custodial parent and is based on the income of the parties under a formula called the Massachusetts Child Support Guidelines. The basic formula is based on the child(ren) maintaining a primary residence with one parent and spending approximately one-third of their time with the other parent. If there is a shared and/or split physical custodial arrangement, the amount of child support may require a different formula. In general terms, child support will be ordered for children up to the age of 18, between the ages of 18 to 21 if the child lives in the parent's home and dependent on the parent for support or up to age 23 if a child lives in a parent's home and is dependent on a parent due to educational enrollment. Once a child is over 18, there is more discretion by the court as to the level of support, especially if parents are also contributing toward college expenses. Massachusetts child support guidelines may be obtained at the probate and family court at the court's website or through the Massachusetts Department of Revenue website.

Can the court garnish my paycheck?
The court may garnish paychecks in order to enforce payment of child support. Called wage assignment, the garnished amount is collected and monitored by the Massachusetts Department of Revenue, who forwards it to the child support recipient.

What happens to my child support payments if my income is cut and I can't afford a lawyer?
If there is a substantial change in the child support payer's income, he/she can ask to modify the existing level of child support. If unable to afford an attorney, the child support payer should contact the probate and family court in which the child support order was entered, and ask court personnel or the lawyer for the day, if available, for help in filing the appropriate paperwork to reduce his/her existing obligation for child support.

What happens to my child support payments if my income increases?
Unless an automatic increase is provided for in an agreement or order/ judgment of the court, there is no automatic increase in the amount of child support as a result of an increase in income. However, under the current Massachusetts Child Support Guidelines, child support may be reviewed every three years if requested by either party. If that review shows the payer's income has increased, the child support obligation may increase as well.

Custody

What age can a child decide which parent to live with?
Massachusetts law does not grant a minor child the authority to decide with which parent he or she will live at any age. In a child custody dispute, Massachusetts law gives the judge the discretion to consider which parent the minor child prefers to live with. When deciding custody, the judge must consider a wide range of factors regarding the minor child's welfare; not just his or her preference.  The importance and weight given to a minor child's preference increases as the child gets older a judge is likely to attach a great deal of weight to an adolescent's expression of preference, while an eight-year-olds preference may not be as compelling.

How is child custody determined?
In Massachusetts, the probate and family court determines which parent should be awarded custody of a minor child based upon that child's "best interests" and which parent will best promote the child's best interests. However, there is no specific definition of the "best interests" standard. It is up to the court to determine what constitutes a child's "best interests" on a case by case basis and the law grants the court a significant level of discretion in deciding what factors to consider as part of the child's best interests. 

*These answers do not constitute legal advice and are written for general information purposes only. Individuals should consult with a lawyer for specific legal advice.

 




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