There are many ways to get a divorce in Massachusetts. Your approach depends on the nature of your case and your financial resources. You are not entitled to divorce counsel and will need to pay an attorney from your income or assets. If you do not have the resources to pay for an attorney, you can represent yourself (referred to as representing yourself “pro se”). Forms and information are available on the Massachusetts trial court website. If you need the advice of a lawyer, you can take advantage of the lawyer of the day programs located at the courthouses in each county. The probate and family court in the county in which you and your spouse reside has jurisdiction over your divorce.
If your divorce will be relatively straightforward and uncontested, you and your spouse can hire a mediator to amicably resolve your case. The mediator will draft a Separation Agreement after which time you will be advised to retain a lawyer to have that person review the Separation Agreement on your behalf. If a full Separation Agreement is reached, the parties can file an uncontested divorce. While this approach is cost-effective and straightforward, the process is non-binding and either party can back out and hire a lawyer to file for divorce at any time. If this happens, the funds spent on a mediator are gone and the process begins anew, which is a source of frustration for many who have participated in a failed mediation. Negotiations during mediation are confidential and cannot later be used against either party in further post-mediation negotiations if the process breaks down. Also, the process may get sidelined once an attorney retained by a party reviews the Separation Agreement and advocates for changes based on his or her client’s interests, which may not have been adequately protected during the neutral mediation process. Thus, before engaging in mediation at the outset, parties are cautioned to ensure they are good candidates for such a process.
Another way to commence the divorce process is simply to retain an attorney and file for divorce. This is the right approach if you think your spouse will delay the process or you have assets you want to protect from being dissipated. Also, once service is made, the length of your marriage is defined as the length between the date of the marriage and the date of service, which may be important with respect to the potential duration of your alimony obligation (five-, ten-, fifteen- and twenty-year marriages trigger different alimony durations). Once you file for divorce, the status quo is maintained financially and neither party can spend money other than in the ordinary course of spending and to retain counsel. Beneficiaries also cannot be changed while a divorce is pending. Once a divorce is filed, there are time frames by which tasks need to be accomplished, including the exchange of financial statements and other documents between the parties. A party can obtain temporary orders in court to address issues such as custody, visitation and support if necessary. The Courts have time standards and attempt to dispose of divorce cases within 14 months. The only negative to this approach is that some spouses may consider it aggressive to file for divorce and litigate. The reality is, however, that filing might be the quickest way to get divorced while adequately protecting rights along the way. Also, there is nothing precluding a spouse from converting the case to an uncontested joint petition for divorce (see below) in the event that a quick settlement is reached out-of-court while a divorce action is pending.
You can also retain an attorney for the purpose of attempting to negotiate a settlement out-of-court (without initially filing for divorce) directly with your spouse, or with your spouse’s attorney if he or she has one. This is called an uncontested “1A” divorce, as opposed to a contested (i.e. plaintiff/defendant) “1B” divorce. The only issue with this process is that there is no court oversight so long as no action is pending in the courts. Also, the process will not be governed by any time standards. However, a party can always elect to file for divorce if progress is not being made in this regard. If a Separation Agreement is negotiated out-of-court, the parties simply file a joint petition for divorce and await a hearing date at which time they will appear in court to obtain a divorce.
There are also other alternatives to get a divorce in Massachusetts. Parties can mediate or arbitrate (the difference is that arbitration is binding on the parties) the divorce case with counsel, which is often helpful if counsel is unable to reach agreement on a particular issue. Counsel can also engage in private court adjudication, which is essentially taking the case entirely out of the court process and assigning judicial authority to a third-party arbitrator who can hear temporary orders and preside over a trial on the merits just as a judge in a court would. The benefit to this process is that it is time effective, as opposed to the courts that are understaffed and backlogged. This process can be costly; however, the costs may be balanced with ordinary litigation in the courts when time is considered.
A lawyer can determine what approach is best to take in your particular case. The best approach depends on the issues in your case and the personality profiles of the parties. The reality is that some cases lend themselves to an amicable resolution while others simply do not. The large majority of cases end in a settlement negotiated between the parties, sometimes with the assistance of input or an order from a judge, an arbitrator or a mediator. In the absence of a settlement, the case is heard and tried in front of a judge (no jury) who will ultimately decide custody, support and financial issues in your case, often at great expense, both emotional and financial. Thus, finding the right lawyer and determining the right approach to your divorce is paramount.
Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.
When clients first come to me and tell me that they believe they are about to get divorced, they often follow up this declaration with a concern: …
Answered by: Jacqueline N. Newman, 4 weeks ago