Massachusetts Uncontested Divorce
This information is an overview of the uncontested Massachusetts divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Massachusetts.
To file for divorce in Massachusetts, a spouse must be a resident of the commonwealth if the grounds for the action happened in Massachusetts. If the grounds happened outside of the commonwealth, a person must be a resident for a year. The action is filed in the county where the couple last resided together. If neither spouse resides in that county, then the action may be filed in the county where either spouse now lives.
Grounds for divorce are No-Fault, which means irretrievable breakdown of the marriage and may be filed with or without a separation agreement, and Fault, which means 1) impotence, 2) imprisonment for more than five years, 3) adultery, 4) alcoholism and/or drug addiction, 5) desertion without support for a year prior to filing for divorce, 6) cruel and inhuman treatment, 7) nonsupport whereby a spouse is able to provide support but grossly, wantonly, or cruelty refuses or neglects to provide support for the complaining spouse.
In divorce actions, the filing spouse is called the Plaintiff, when the action is fault based, and the Petitioner in no-fault actions; the spouse responding is called the Defendant in fault actions and the Respondent in no-fault actions. In fault actions, a divorce is called a Complaint for Divorce; in no-fault filings, a Petition for Divorce.
Actions are filed in the Probate Court for the Commonwealth of Massachusetts.
Massachusetts permits a simplified divorce (called a "1A," so named for the section of the law). When both spouses can cooperate, a couple files a joint petition. This is an uncontested, no-fault divorce. In this routine, the spouses submit the following documents:
> A certified copy of the marriage certificate;
> A Joint Petition, which identifies the parties, their children (if any), requests restoration of wife’s former name (if desired) and asks the court to incorporate a separation agreement;
> A Joint Affidavit, which states that the couple "...no longer [derive] satisfaction from ... married life and now believe there is no chance of reconciliation."
> A Financial Statement for each spouse, which is on pink paper if the spouse makes less than $75,000 per year and on purple paper if he or she makes more than $75,000 per year;
> An Affidavit Disclosing Care or Custody Proceedings, if there are children under 18, which describes the terms and conditions of custody and visitation;
> Attendance Certificate, which certifies that the parents attended parenting classes, if there are minor children;
> Child Support Guidelines Worksheet, which is used when there are unemancipated children under 23;
> A Settlement Agreement, which is signed by both spouses and details the terms and conditions of the property settlement;
> An Income Assignment Worksheet, which is used to assign incomes, if required;
> Request for Trial--Pre-Trial Assignment, which is used to schedule a divorce hearing;
> Certificate of Absolute Divorce or Annulment, which records the action for the commonwealth.
The spouses in an uncontested, no-fault action may ask for a hearing at the time they file. Depending on the county, the hearing is set up in days or weeks, but from the hearing to the final divorce, five to six months elapse, about a month longer fault or contested action. Contested no-fault actions may take even longer -- a six-month waiting period after filing the Complaint and four to nine months wait for a hearing, plus 90 days after a trial. Contested Fault divorces can take seven months or more from the filing to the final action.
Filing for an uncontested, fault divorce requires all the forms used in an uncontested, no-fault divorce, plus the following:
> A Complaint for Divorce, which identifies the parties, their children and stipulates the requested relief;
> A Divorce/Separate Support Summons, which is returned with the Defendant’s acceptance of service or sheriff’s return of service;
> An Answer and Counterclaim, which may or may not be filed by the Defendant if he or she wishes.
If a spouse cannot or will not be located or accept the Summons, or if he or she lives outside of Massachusetts, the Plaintiff must file a Motion for Alternative Service. After the court orders it, the Divorce/Separate Support Summons and a legal notice may be published in a newspaper designated by the court. The Summons and a legal notice are published once a week for three weeks. After this, a copy of the Divorce/Separate Support Summons is mailed to the last known address by certified mail, return receipt requested. If the mail is accepted, the green card is filed with the court. If it is not, the court is so informed.
Contested actions, fault and no-fault, begin in a similar way, but can become much more difficult. Each party must provide the other with detailed financial information within 45 days of the receipt of the Summons. The Defendant normally files an Answer and Counterclaim as a preliminary to contesting the action. Sometimes, the Plaintiff will request temporary orders in connection with spousal and child support. If the contested action cannot be resolved, the parties prepare for trial. This preparation entails discovery, which includes interrogatories, requests for production of documents, depositions.
In Massachusetts, unlike some states, the court prepares Notices of Hearings, Court’s Findings, Judgement or Divorce Nisi (which is a preliminary to the final judgment), and the Final Judgment of Divorce.
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