WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Thursday, September 27, 2012

When does 30 + 90 not equal 120? In Divorce Court!

As we covered in a previous post (What happens after my Divorce Agreement is approved by a Judge?), there is a 90-120 day waiting period after your divorce is allowed before it becomes final in Massachusetts. But that 90-120 day waiting period may not be exactly 90-120 days from your settlement date:

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing. 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 at least 120 days after the divorce hearing date.

If you filed a Complaint for Divorce then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle). If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until at least 90 days after the divorce hearing date.

Since the statute (M.G.L. c. 208 s 21) simply calls for judgments to become final after the "expiration of ninety days", why would it take longer? Because the Court is not open on holidays and weekends, and this can affect the final effective date. In a Joint Petition this can also affect the date the Judgment actually issues as well, since it is thirty days after the hearing, and not the same day as the hearing as in a Complaint for Divorce.

To make sense of all this, it helps to view an example:

Assume that you file a Joint Petition for Divorce and your uncontested hearing date was on April Fools Day, Friday, April 1, 2011 (you may read into the choice of that date whatever you choose to).

Thirty days after April 1, 2011 was Sunday, May 1, 2011 (TIP: if you don't like counting on a calendar use Wolfram Alpha for quick date calculations). Since the court is not open on Sundays, the Judgment of Divorce Nisi in this case would have issued on Monday, May 2, 2011.

Now to calculate the Judgment of Divorce Absolute date, we would count 90 days after May 2, 2011, which results in Sunday, July 31, 2011. Again, the court isn't open on Sunday, so the date of Divorce Absolute shifts to Monday, August 1, 2011.

If you had simply added 120 days to April 1, 2011, you may have thought that your Divorce Absolute date was Saturday, July 30, 2011, when in fact the actual date was Monday, August 1, 2011. While you could still celebrate on the previous Saturday, the actual date does have a legal effect on certain issues (to read more on those issues read our previous post: What is the purpose of the Divorce Nisi waiting period?)

In this example 30 + 90 = 122. Welcome to math in the Divorce court!


Thanks to Robin Chaykin, Esq. of Fraser & Galanopoulos for bringing this discrepancy to our attention!

Tuesday, September 25, 2012

Divorce in Massachusetts: 5 Things You Need to Know to Get Started

There are five questions you will need to answer to get started with a divorce in Massachusetts:
1. CAN you file for divorce in Massachusetts?
2. WHY are you getting divorced?
3. HOW will you get divorced?
4. WHO can help you get divorced?
5. WHERE will you get divorced?

We answer each of these questions below:

1. CAN you file for divorce in Massachusetts?

If you have been a resident of Massachusetts for one year then you can file for divorce in Massachusetts. Even if you have not been a resident for one year, you still may be able to file for divorce in Massachusetts but it may be complicated to determine.

We created an infographic to clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart available here: Can I file for divorce in Massachusetts? An Infographic.

Just because you can file for divorce in Massachusetts, however, does not necessarily mean the court has jurisdiction over all issues in your case, as we explain in greater detail here: Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney because these issues can present complicated determinations and possibly multiple court cases.

If you have determined that you can file in Massachusetts, you now have to answer:


2. WHY are you getting divorced?

There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

The Fault Statute: M.G.L. ch. 208 § 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; imprisonment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has broken down.  It is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted.

The No-Fault Statutes: M.G.L. ch. 208 § 1A and M.G.L. ch. 208 § 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.

If you are filing for a No-Fault Divorce (the most likely option) then you may not have to litigate your case.  There are other (oftentimes better) options for:


3. HOW will you get divorced?

There are four paths you can take to get divorced: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce.  We created an infographic to help you visualize the different tracks you can take, and how you might end up moving from one track to the other (as well as some of the waypoints along the way):  The Divorce Roller-Coaster: An Infographic of Options.

Each path has strengths and weaknesses and we examined some of these in the following posts:

Mediation, Collaborative Law or Litigation: What's your Vote?

The Cleavers Divorce: A Mediation

The Huxtable's Divorce: A Collaborative Divorce

The Honeymooner's Divorce: A Litigation Case

To learn more about the pros and cons of each option visit our: Litigation site, Mediation site, or Collaborative Divorce site.

Regardless of which of these paths you believe is best for your case, you will likely benefit from some help:


4. WHO can help you get divorced?

An attorney can help you with all of the steps in the divorce process. An experienced Massachusetts divorce attorney can answer or help you answer all of the questions raised at the beginning of your case (as covered in this post); help guide you through the process that you choose; assist you in drafting necessary documents, negotiating and presenting your case; and prepare and explain any settlements in your case. You can hire an attorney to help you with all of these elements of your case, or just parts of your case (through Limited Assistance Representation).

In addition, whatever path you choose to get divorced, there are many instances where other professionals can assist in moving a case forward and reduce the cost spent on attorney's time as described in our post: Besides an Attorney, what professionals might be involved in my Divorce case?

And finally, even once you've answered the who, what, why and how, you still need to know:


5. WHERE will you get divorced?

In Massachusetts, the county that you file for divorce in is controlled by M.G.L. c. 208 s 6. You should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county. For clarification on how to apply these rules, and to read about two exceptions to the rules, read this post: What County do I File my Divorce in? Click here for Directions and Phone Numbers to the Probate & Family Courts in each county.


Tuesday, September 18, 2012

The Divorce Roller-Coaster: An Infographic of Options

There are four tracks you can choose from to get divorced in Massachusetts: Direct Settlement Negotiation, Litigation, Mediation, or Collaborative Divorce. We created the following infographic to help you visualize the different tracks you can choose from, and how you might end up moving from one track to the other (as well as some of the important waypoints along the way):



You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and paste the following code:



Click here for more information about Divorce Options in Massachusetts.

Tuesday, September 11, 2012

Can I file for divorce in Massachusetts? An Infographic

The following chart displays the paths for determining whether you qualify to file a divorce in Massachusetts. Our hope is that this infographic can help clarify the confusing question of jurisdiction over a divorce case in Massachusetts by consolidating the statutes and case law into one chart.

As we discussed in a previous post, just because you can file for divorce does not necessarily mean the court has jurisdiction over all issues in your case. If your case involves residency, property, or children living in multiple states, you should definitely consult with an attorney.



You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and paste the following code:



Click here for more information about Divorce in Massachusetts.

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