by Diane Neumann
There are two kinds of divorce in Massachusetts:
- No-fault divorce
- Fault divorce
Either of these divorces may be ‘contested’ or ‘uncontested.’ An “Uncontested” divorce means that the parties agree to all issues in a divorce settlement and have a signed written divorce agreement. A “Contested” divorce means that the parties do not agree to all issues and therefore, they do not have a signed divorce agreement.
Massachusetts law requires a reason for the divorce, and this reason is referred to as “grounds”. Both of the 2 kinds of divorce in our state, fault and no – fault divorce, each requires grounds. In Massachusetts, the grounds for a no-fault divorce is called “Irretrievable Breakdown”, which means that the marital bond has been broken. Upon filing for divorce, the divorcing couple must draft an Affidavit of Irretrievable Divorce, detailing their reasons. The ground for fault divorces include: Cruel and Abusive Treatment (still the most common ground for divorce in this state), Utter Desertion, Sentence of Confinement in a Penal Institution, etc.
Providing the legal grounds for divorce in theses situations is rigorous, time-consuming and adversarial.
During the court process, each of the spouses is referred to as a “party”. If the parties submit to the court a signed divorce agreement (both spouses have signed), this is a no-fault, uncontested divorce and referred to as “1A.” (the Massachusetts law statue number).This type of divorce allows the parties to file jointly in court, (as joint petitioners) and neither person is required to be the defendant, nor will either party be served with a subpoena.
For Divorce purposes, Massachusetts is divided into counties. The divorce action must be filed in the appropriate county, which is where the parties last lived together – while easy enough if both parties continue to reside in the same county after divorce, not so simple if they have moved.
Massachusetts is an “equitable distribution” state, which means that all of the assets and debts acquired during the marriage are considered marital.
Court required documents for a No fault, uncontested Divorce in the Commonwealth of Massachusetts are the following: (Note that they may differ in each county)
- Separation Agreement – Signed and notarized by both parties
- Joint petition for divorce – MGL (Massachusetts General Laws) chapter 208, section 1A
- Financial Statements – each person must submits a separate statement, listing all financial information, and sworn to under the pain and penalties of perjury.
- Affidavit of Irretrievable Breakdown (a description of the cause of the break down of the marriage)/
- R 408/Certificate of absolute divorce statistical form
- Request for trial/hearing/assignment
In addition, the parties must file:
- Certified copy of the marriage certificate
The cost of the filing:
- Court filing fee
If there are children, the parties must file additional documents:
- Department of Revenue Child Support Enforcement Form
- Child Support Guideline worksheet
- Affidavit disclosing care or custody proceeding
If there is a child, each parent must attend a state approved parent education course. Upon completion of the course, he or she is awarded a certificate of completion.
- Parenting Certificate for each parent
A hearing date is set by the court approximately one month after the court papers are filed. Both spouses must attend the court hearing, unless there is a motion filed and the courts accept the appearance waiver.
In Massachusetts, it is against public policy to draft a Divorce Agreement; rather final document agreement is called a “Separation Agreement”. At the court hearing for divorce, the judge reviews the Separation Agreement submitted by the parties. The judge has the sole authority to accept, reject, or modify the agreement. In order to approve the Separation Agreement, the judge must find the settlement fair and reasonable under the laws of the Commonwealth. If the judge finds the Separation Agreement unfair and unreasonable according to the court’s legal standards, the judge cannot accept the settlement.
The divorce does not become final upon the approval of the judge at the court hearing, rather, the judge issues findings thirty days after the court hearing (called the NISI). The NISI is automatically entered by the trial court. Ninety days later, the divorce judgment is final, and this is the actual date of the divorce, called the date of Absolute Divorce.
If the parties do not agree on the term of their settlements, there is a contested divorce. One party must go to court and file for the contested divorce, referred to as a “1B”. Though this divorce also has irretrievable breakdown as the grounds, the parties will end up in a trial if they do not agree on a settlement. However, if the parties choose to use mediation after filing for a 1B, and they reach a settlement in mediation, the mediator will inform the parties as to changing the divorce to a IA.
A note to this discussion is that a fault divorce becomes final in 90 days, rather than the 120 day wait for a no-fault, therefore, the fault divorce is a 30 day shorter wait. Massachusetts was one of the last states to enact no-fault divorce.