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Family Law: Separation and Divorce
Which court do you go to?
Almost all divorce cases and other related family law matters are heard in the Probate and Family Court in the county where you or your spouse are living at the time you petition the Probate and Family Court for relief or in te county where you and your spouse last lived together.
How do you petition the Probate and Family Court for relief?
An action for divorce or for separate support is initiated by filing a Complaint For Divorce or Complaint For Separate Support in the Probate and Family Court. There is no requirement that you be living apart from your spouse prior to the filing of a divorce or separate support complaint. A complaint for divorce requests the Probate and Family Court to end the marriate itself by the granting of a divorce. A separate support complaint asks the Court to find that you are living apart from your spouse for a legally good reason and that the Court oficially recognize your living separate and apart from your spouse.
What are the residency requirements in Massachusetts?
Massachusetts courts have jurisdiction to hear divorce actions in which the parties lived together as husband and wife in Massachusetts, the cause of action for divorce occurred in Massachusetts, or the parties lived together as husband and wife in Massachusetts and the cause of action occurred while at least one of the spouses was living in Massachusetts. Otherwise, the Massachusetts Probate and Family Courts can hear a divorce matter if the moving party has lived in Massachusetts for one year preceding the commencement of the divorce action (if the cause of action occurred outside the Commonwealth.) There are no residence requirements for the filing of a Separate Support Complaint provided you are living in Massachusetts at the time the complaint is filed.
What will the attorney discuss with you at the first office conference?
In most cases, the attorney may discuss the following subjects:
- The possibility of marriage counseling or other steps to be taken to help save the marriage
- Assisting you as a parent in meeting the needs of your children
- Dissolving the marriage by divorce
- Financial matters involving support, real estate and personal property
- You and your spouse legal rights
- Procedures in Probate and Family Court
- Procedures employed in the attorney's law office in the handling of the case
You should be sure to discuss the matter of legal fees with the attorney at your first meeting.
What is the first step in Probate and Family Court?
Should you decide to petition the Probate and Family Court, your attorney will prepare either a divorce complaint or a separate support complaint on your behalf.
How quickly can the probate judge act for your benefit?
The Probate and Family Court has the power to make temporary Court orders on behalf of both the husband and the wife upon the filing of either a separate support complaint or a divorce complaint in that Court. Except in cases of emergency, the attorney is required to give your spouse at least three days' notice that a motion will be heard in the Probateand Family Court on a speicific day and at a specific time subject to the schedule of the Probate and Family Court.
Upon the giving of propoer notice to your spouse, the following tremporary orders can be made by the Probate and Family Court:
- Granting temporary custody of the minor children
- Granting a temporary restraining order which orders your spouse not to impose any restraint on your personal liberty
- Ordering your spouse to vacate the home where you are living together
- Granting temporary support of yourself and the minor children
- Imposing a wage assignment on your spouse's pay in order to insure the payment of support
- Granting visitation rights to that pouse who does not have physical custody of the minor children
The Court may make other temporary orders at thee request of the parties or on its own motion.
Service of a Divorce Complaint
What do you do if you receive notice that your spouse is going to appear in Probate and Family Court to request temporary orders?
If you receive notice that your spouse will appear in Probate and Family Court to request that temporary orders be made on a separate support complaint or a divorce complaint, you should consult an attorney immediately or appear in Court on the date set forth in the notice. This is a very important and crucial phase of the court proceedings. Assuming there has been proper notice, the order of the Probate and Family Court will be binding upon the parties. Your failure to abide by the Court orders may result in your being found guilty of contempt of the Probate and Family Court even if you did not attend the hearing.
What happens after the granting of temporary orders?
After the hearing before a Probate Judge and the granting of temporary orders, there are various pre-trial information-gathering procedures that must be undertaken before a hearing. At the trial, after all of the witnesses have testified and the evidence has been presented to the Court, Judge will enter a judgment. The judgment may also contain final orders with respect to support obligations, custody of minor children, visitation rights and other financial matters. These orders may be modified at a later date by the Probate and Family Court upon the filing of a complaint for modification of the judgment.
What are the grounds for divorce in the Commonwealth of Massachusetts?
IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE
This is the "no-fault" concept. The benefits resulting from the use of this ground for divorce is essentially that neither the husband or the wife is required to allege fault or blame the other spouse for the breakdown of the marriage. The Court also does not require either spouse to give testimony to prove the other spouse at fault for the breakdown of the marriage.
CRUEL AND ABUSIVE TREATMENT
The granting of a divorce on this ground does not require proof of physical violence by one spouse upon the other. This ground is broad enough to include mere words, if they create a reasonable fear of personal violence, or tend to wound the feelings to such a degree as to affect the health of the party or create a reasonable apprehension that it may be affected.
NON SUPPORT
This ground of divorce requires that you show that your spouse, although able to support the family, did grossly, wantonly and cruelly refuse and neglect to provide suitable support for you.
UTTER DESERTION FOR AT LEAST ONE YEAR, ADULTERY, IMPOTENCY, GROSS AND CONFIRMED HABITS OF INTOXICATION BY LIQUOR OR DRUGS, PRISON SENTENCE FOR FIVE YEARS OR MORE
NOTE: The above grounds need not be proven at the time of the initial granting of temporary orders but must be proven at the time of the trial for the granting of the divorce.
Do you need a witness?
In most cases, you will not need a witness. Your attorney will advise you; however, it is up to the judge to decide whether or not you need a witness to support your testimony.
Can you get a divorce if you committed the acts listed above?
The law of the Commonwealth of Massachusetts no longer requires that the spouse seeking the divorce be without blame for the failure of the marriage. A husband or wife you can prove one of the grounds for divorce can no longer be denied a divorce solely because his or her spouse can prove that the other committed acts which amount to one of the grounds of divorce.
How long does the divorce take?
If you and your spouse agree on all issues, you may be able to receive a court date within a month or so of the filing of all necessary papers. If any issues are contested, a divorce can take up to a year or more.
When is the divorce judgment final?
If the Court sees fit to grant a judgment of divorce after the trial, the marriage will legally end 90 days from that date. If the parties have filed a join petition for divorce, the divorce will be final four months from the date of the final hearing. After this period is over, the parties are free to remarry and otherwise act as single persons.
What is the role of the attorney with respect to the children of the marriage?
The separation of a married couple is one of the most traumatic occurrences in one's life. During this difficult period, it is the duty of the attorney to help you understand the long- and short-term consequences of your divorce on the children, and to help you navigate the court system's waters. Your attorney does not represent your children, however, and you may want to hire an attorney for them if custody is contested. As a parent, you should seek solutions to meet the psychological and financial needs of your young children.
Masslawhelp is a public service of the Massachusetts Bar Association.Posted on Apr 27, 2000 |
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