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Thursday, September 29, 2011

How long does it take to get Divorced?

The length of time between the beginning of a divorce case and the completion of the case varies greatly. The shortest amount of time it can take you to get divorced is about 5 months, while the longest can be years (my longest case so far was almost 6 years). The variation is mostly due to how you choose to resolve your divorce case, and how much you and your spouse disagree about the division of assets or custody of children.

Variation due to Type of Case: Private Resolution v. Court

You and your spouse can resolve your case by settlement out of court in three primary ways:

  1. Direct Negotiation: Either directly with each other, or though counsel, you and your spouse can negotiate a divorce settlement without going to court. If you can reach an agreement on all issues, then you will still have to present a written agreement to the court which details your agreement.
  2. Collaborative Divorce: If you cannot negotiate directly, and want to use counsel, the Collaborative Divorce process allows you to negotiate with an assurance that your attorneys are also committed to out-of court settlement (because they agree not to go to court as part of the Collaborative process agreement). The goal of a Collaborative Divorce is also to result in a written agreement which is then presented to the court for approval.
  3. Mediation: Mediation is a process that allows you to negotiate directly with your spouse, but still have the assistance of a neutral person to help provide information about the process and referee disputes. The goal of a mediation is also to result in a written agreement which you present to the court for approval.

In all of these scenarios the agreement is filed with a Joint Petition for Divorce under Section 1A of M.G.L. c. 208. The Court will set a date and time for an uncontested divorce hearing. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Total Time to Get Divorced = Time to Settle + Hearing Date Waiting Period (20-30 days) + 120 days.


Court Resolution:

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. The Court has time standards that govern the range of time that your case should take to get from filing to trial. Time standards requires that a case be heard within 14 months, but application of these standards varies and if discovery takes longer than usual then you may not be heard within 14 months.

If the parties are unable to settle their divorce case, then at the end of discovery a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

Total Time to Get Divorced = Time between Complaint for Divorce filed and Settlement or Trial Date + 90 days.


Variation due to the length of the FIGHT:

Whether you settle or go to trial your case will take longer if you make it difficult for the other person to obtain information or if there are complicated issues. When settling out of court you control how quickly your case moves based on how quickly you provide each other with information and how quickly you reach agreements.

The divorce process in court can take much longer because when disagreements arise, you must wait for the court's schedule to allow for resolution. At the very least, absent an emergency, it usually takes at least a few weeks to get into court, even just to deal with one contested issue. Furthermore, court is often delayed by discovery issues that require more time, such as business valuations or custody investigations.

What is the average length of time these issues take?

A simple case, with only some contested issues, will still typically take 8 months to 1 year to settle through court. Through mediation or collaborative divorce, a simple case will usually require 2-3 meetings, which typically takes 2-3 months to resolve.

A complicated case or a case with numerous contested issues will obviously take longer. On average these cases still resolve through court in 1-2 years, but can go longer. Through mediation or collaborative divorce, a complicated case will require more meetings but will still likely be shorter than the court process.

Tuesday, September 27, 2011

The New Massachusetts Alimony Law in a Nutshell

As expected, Massachusetts Governor Deval Patrick signed into law the Alimony Reform Act of 2011 yesterday.

The new law, which becomes effective March 1, 2012, makes significant changes to alimony in Massachusetts. Here are just some of the changes:

The new law defines multiple types of alimony:

Types of Alimony Defined:

General Term Alimony: periodic payment of support to a recipient who is economically dependent.

Rehabilitative Alimony: periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment, completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.

Reimbursement Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of compensating the recipient for economic or noneconomic contributions to the financial resources of the payor spouse, such as enabling the payor spouse to complete and education or job training.

Transitional Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce.

The new law defines the maximum amount of Alimony:

Except for Reimbursement Alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:
  • Remarriage of the recipient;
  • Death of the recipient;
  • Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
  • Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated above;
  • Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination;
  • Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

The deviation factors which could result in a different amount or duration are:
  • Advanced age; chronic illness; or unusual health circumstances of either party;
  • Tax considerations applicable to the parties;
  • Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
  • Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
  • Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
  • Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
  • A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;
  • A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
  • Upon written findings, any other factor that the court deems relevant and material.

Other Notable Provisions:

Factors to Determine Type, Amount and Duration of Alimony: the length of the marriage; age of the parties; health of the parties; both parties' income, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court may deem relevant and material.

Gross Income Shall Not Include: Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and Gross Income already used to calculate Child Support.

Attributing Income: In determining the incomes of parties with respect to the issue of alimony, the Court may attribute income to a party who is unemployed or underemployed.

Remarriage of Payor: income and assets of the payor's spouse shall not be considered in a redetermination of alimony in a modification action.

Overtime or 2nd Job: shall not be considered if first job is full time, and additional income started after initial order.



Click here to learn more about Divorce, Mediation and Alimony.

Monday, September 26, 2011

New Same-Sex Divorce Resource

In Massachusetts, same-sex marriage is a right, and that means, for some, same-sex divorce will follow. When the unfortunate happens, can same-sex spouses hire any divorce attorney? Do all the same laws apply to these couples?

You might think that the legalization of same-sex marriage means that these couples have all the same rights as opposite-sex couples, but you would be wrong.

Even in the Commonwealth of Massachusetts, the discriminatory laws and practices of the federal government and other state governments can cause legal problems for same-sex couples who are married here. In addition, because gay marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages.

There is a new site dedicated to providing information about the specific issues involved in Same-Sex Massachusetts Divorce cases called: SameSexMassDivorce.com.

SameSexMassDivorce.com is a resource where same-sex spouses considering divorce or already involved in a divorce can learn about the differences that face a same-sex couple in a divorce case, custody case, child support case, or an alimony case. There is also a same-sex version of our unique Parenting Plan Worksheet tool.

How do I serve Divorce Papers on my spouse (at Fenway Park)?

As Red Sox pitcher Erik Bedard recently found out, how your ex chooses to serve you with family court papers can be private or very public. As described by the New York Post, Bedard was served with a child-support case by a constable (who happened to be a Yankees fan) at Fenway Park before taking the mound for the Red Sox last week. Serving him at work was not required, but might be your preference if you're a Yankees fan.








What are the requirements for service of Divorce or other Family Court Complaints?

Whether or not you tell your spouse you want a divorce before you serve them with the divorce papers is a personal choice (covered by our previous post: How should I tell my spouse that I want a Divorce?). Once a divorce (or other domestic relations) action is begun, though, there is a legal process to ensure that the opposing party is properly served with the Complaint. The Court will provide you with a Summons which must be served on the Defendant.

In Massachusetts, the requirements for service are covered by Massachusetts Domestic Relations Procedure Rule 4.

Rule 4 requires that service of the summons:
  • be performed by a "sheriff, by his deputy, or by a special sheriff; by any other disinterested person..." We typically use the "other disinterest person" in the form a Constable;
  • be accompanied by a copy of the Complaint; and
  • be made by having the Defendant accept service by signing in front of a notary, or by having the summons delivered to the Defendant personally (in their hands directly), except in the case of some types of complaints which can left at their last and usual place of residence and mailed (see Rule 4(d)(2) for a list of these complaints).
Once served, the Summons must be returned to the Court with proof of service (such as the notarized signature of the Defendant or a sworn statement of the serving constable). The Summons must be served within 90 days after the filing of the Complaint or the action could be dismissed.

If your spouse won't accept service then where you have them served is a matter of choice. Usually we serve people at home, but if we expect them to avoid service (by hiding or not answering their door) then we may be forced to serve them at work or some other public place they are known to hang out often. You may want to consider how serving your spouse at work or in front of their friends could be embarrassing. Although it was satisfying for the Yankees fan to serve Bedard at Fenway Park, it's probably not going to help the chance of that case settling.

Of course, this could also be a unique opportunity for the Jumbotron...

Wednesday, September 21, 2011

Budget Cuts Force Many Massachusetts Courts to Close Early

Starting this past Monday, thirty-eight courts in Massachusetts began cutting hours for clerks and registers due to budget cuts, staff shortages, and backlogs. The reduction in hours are said not to affect court sessions and that staff offices will be available for emergencies.

The following district courts will have restricted counter and telephone coverage: Attleboro, Barnstable, East Brookfield, Fall River, Framingham, Haverhill, Ipswich, Lawrence, Lowell, Lynn, Malden, Natick, Newburyport, Palmer, Somerville, Springfield, Stoughton, Taunton, Uxbridge, Waltham, Westborough, Woburn and Wrentham.

The Western Division of the Housing Court and the Springfield Divisions of the Juvenile Court and Land Court will similarly have restricted counter and telephone coverage.

All Probate & Family Courts will have restricted hours after 3:00 P.M.


Source: The Patriot Ledger: "38 Massachusetts courts reduce public office hours because of budget cuts"

Friday, September 16, 2011

Update: Massachusetts Alimony Reform Closer to Becoming Law

Yesterday, the Massachusetts House of Representatives passed the Senate version of the Alimony Reform Act of 2011, meaning that its only remaining hurdle before becoming law (although it has an effective date of March 1, 2012) is Governor Patrick's signature. Governor Patrick has previously indicated his support for the bill.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Thursday, September 1, 2011

Custody Reform Summary: The Good, The Bad, and The Compromise


There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.

For our recommendations, keep reading after the table.

Current Law

Proposed Bill

Proposed Change

P1 – P5 Definitions of Custody

S.659

Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.

S.847

Definitions Deleted Entirely

H.1306 & H. 2684

No Change

H.1330

H.2244

P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.

S.659

Delete Paragraph Entirely

S.847

Delete Adverse Effects Language, Add Requirement of Equal Time, Minimum Guaranteed Time Required

H.1306 & H.2684

Delete Adverse Effects Language Only, Adds Parties are equal, and court should maximize exposure to each so far as practical

H.1330

Add requirement to consider who is responsible for adverse conditions, and Add requirement for court to consider “rights of parents”

H.2244

Delete Adverse Effects Language Only, Add Requirement of Equal Time

P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.

S.659

Add Presumption of Shared Physical Custody

S.847

H.1306 & H.2684

H.1330

H.2244

P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.

S.659

Delete willingness of parties to cooperate as factor

S.847

Standard for overcoming presumption is greater: “immediate physical or emotional danger” to children

H.1306 & H.2684

Standard for overcoming presumption is greater: must show child would be harmed by shared custody; Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification

H.1330

If parties unwilling to cooperate order a dispute resolution plan

H.2244

Delete willingness of parties to cooperate as factor, Standard for overcoming presumption is greater: must show clear and convincing evidence that parent is unfit.

P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.

S.659

Reverse Presumption - Court must enter written findings as to effects of the abuse on the child to not order shared physical custody

S.847

Deleted

H.1306 & H.2684

Deleted

H.1330

Add that denial or vacating of 209A shall be binding and facts alleged therein shall not be used in custody determination

H.2244

Deleted

P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.

S.659

Reversed. Presumption at trial of Shared Legal and Physical custody.

S.847

Deleted

H.1306 & H.2684

Reversed. Presumption at trial of Shared Legal and Physical custody.

H.1330

Reversed. Presumption at trial of Shared Legal and Physical custody.

H.2244

Deleted

P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan

S.659

Changed to Parties shall agree and if they do court must accept. If parties cannot agree court may issue its own plan.

S.847

No Change

H.1306 & H.2684

Court may only modify or reject the plan if child would be harmed by shared custody; Presumption of shared custody exists even if parties don’t submit proposals

H.1330

Court may only modify or reject if preponderance of evidence shows that agreement would not be in best interest of children.

H.2244

Court may only modify or reject if parent is unfit

P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.

S.659

No Change

S.847

H.1306 & H.2684

Reversed: If Shared Physical Custody is ordered court shall revise child support order

H.1330

H.2244

P 15 – Right of Parents to access school or medical records

S.659

No Change

S.847

H.1306 & H.2684

H.1330

H.2244

P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children

S.659

Court must accept agreement, or make specific findings that such an order is not in best interest of children

S.847

No Change

H.1306 & H.2684

Court may only modify or reject the plan if child would be harmed by shared custody

H.1330

Court must accept agreement, or make specific findings of clear and convincing evidence that the order is not in best interest of children

H.2244

Court must accept agreement



If you are interested in learning more about why we believe that some of these changes are practical and some aren't, read our previous posts evaluating each of the proposals individually. Based on all of these evaluations, we would propose a hybrid of these bills taking the best parts of each as follows:

Current Law

Our Proposal

P1 – P5 Definitions of Custody

No Change

P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.

Delete Adverse Effects Language Only, Add Parties are equal, and court should maximize exposure to each so far as practical

P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.

Add Presumption of Shared Physical Custody

P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.

Delete willingness of parties to cooperate as factor, Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification

P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.

Add that denial or vacating of 209A shall remove any presumption against shared custody, though court may still consider alleged facts.

P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.

Reversed. Presumption at trial of Shared Legal and Physical custody.

P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan

Court may only modify or reject joint plan if preponderance of evidence shows that agreement would not be in best interest of children.

P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.

Reversed: If Shared Physical Custody is ordered court shall revise child support order pursuant to the Guidelines

P 15 – Right of Parents to access school or medical records

No Change

P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children

Court must accept agreement, or make specific findings that such an order is not in best interest of children






To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation

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