About Divorce

What You Should Know About Divorce

By Daniel Karpman Attorney At Law

Marital problems often create enormous emotional pain. Beyond the considerable emotional pain, the end of a marriage is legally complex. Every marital situation is different and involves different factors, such as child custody, financial support and a fair and equitable distribution of marital property. Consult a lawyer if your marriage is ending. You should obtain sound, qualified professional legal advice to understand your legal rights and the options for your particular circumstances.

Alternatives to Divorce

Depending on your specific situation, you may wish to consider alternatives to divorce, such as marriage counseling, separate support and annulment.

Marriage counseling - Many couples try marital counseling from a licensed marriage counselor, psychotherapist, or licensed clinical social worker as an alternative to divorce. Such counselors are trained to help couples resolve differences. The counselor may be able to help you and your spouse learn communications skills and achieve a better understanding of one another to prevent your marriage from failing.

Marriage counseling can be useful when couples find their problems have begun to affect their compatibility with each other. Counseling also may keep a relationship with your spouse from worsening even if divorce is unavoidable.

Separate support - If you and your spouse separate, it is best to have the court issue an order regarding your rights pending divorce. The purpose of such an order is to decide the issues of support, child custody and visitation. The order can be enforced by the court if the other party does not comply.

Annulment - An annulment is a court ruling that a marriage was never legally valid. A marriage may only be annulled if there was a serious defect at the time of the marriage ceremony. A marriage can be annulled if one of the parties was under the legal age (18) at the time of the marriage, if a spouse could not consummate the marriage, if consent was obtained fraudulently, or if the marriage was bigamous or incestuous. People may seek an annulment for religious reasons.

Because an annulment is an adjudication that the marriage did not exist, after the adjudication there are no financial rights between the parties arising from the fact of their marriage. Neither party will be awarded alimony. There is no marital property, and therefore, there is no equitable division of property.

Grounds for Divorce

No-Fault Divorce - Massachusetts provides for a divorce for an irretrievable breakdown of the marriage. This is the "no-fault" concept. A divorce can be obtained because of incompatibility or irreconcilable differences. The benefit from using the no-fault ground for divorce is essentially that neither spouse is required to allege fault or blame the other spouse for the breakdown of the marriage.

Fault Grounds - There are seven fault grounds recognized by the courts in Massachusetts: cruel and abusive treatment, gross or wanton and cruel refusal to provide suitable support, utter desertion for at least one year, adultery, impotency, gross and confirmed habits of intoxication by liquor or drugs, and prison sentence of five years or more.

Residency Requirements

The Probate and Family Court has jurisdiction to hear divorce actions in which the parties lived together as husband and wife in Massachusetts, the cause of action for divorce occurred in Massachusetts, or the parties lived together as husband and wife in Massachusetts and the cause of action occurred while at least one of the spouses was living in Massachusetts. Otherwise, the court can hear a divorce if the moving party has lived in Massachusetts for one year preceding the commencement of the divorce action, if the cause of action occurred outside of Massachusetts.

There are no residency requirements for filing a complaint for separate support, provided that the moving party is living in Massachusetts at the time the complaint is filed.

Starting Divorce Proceedings

An action for divorce or for separate support is initiated by filing a formal document, called a complaint, in the Probate and Family Court. There is no requirement that the parties must be living apart prior to filing the complaint. A complaint for divorce requests the court to end the marriage itself by granting the divorce. A complaint for separate support asks the court to find that one spouse is living separate and apart from the other spouse for a legally good reason, and that the court officially recognizes that status.

The divorce complaint includes information on the marriage, residency, present living arrangements, children of the marriage, and the specific cause claimed for seeking the divorce. A copy of the complaint must be served upon the spouse.

Divorces may be uncontested or contested. An uncontested divorce can be granted when the parties agree on all the issues, such as child custody, support, visitation, and property division. A contested divorce, where the parties cannot agree to the terms, resembles a lawsuit with a trial before a judge.

Child Custody

The welfare of the minor children is of major concern to the court. Decisions relating to custody of children, and the related issues of visitation and support, are some of the most important issues in divorce. Neither party is entitled to custody of any children automatically. The judge may consider several factors in awarding custody, including the age and gender of the children, compatibility with each parent, parental ability to care for the children, and the individual conduct of the parents.

Physical custody can be given exclusively to one spouse, or the parties may share joint custody. In most cases, one parent has sole physical custody, and the children live with that parent. The other parent has visitation rights with the children.

Typically, the parties share joint legal custody. The parties share responsibility for important decisions affecting their children, such as choosing schools and medical treatment.

Child Support and Alimony

Both parents are responsible for the support of the children. The amount of child support and the terms of payment are determined by the court as part of the divorce.

Spousal support is called alimony. One of the parties may be entitled to alimony from the other depending on their respective incomes and property, standard of living, financial needs, and the circumstances leading to the divorce.

Division of Property and Debts

Upon divorce, the court may assign to either party all or any part of the estate of the other. The property subject to division is not limited to property acquired during the marriage. Thus, property acquired by gift or inheritance, including property acquired by a spouse prior to the marriage, is subject to division. The primary consideration in awarding equitable division is the contribution of each party.

The mandatory factors that must be considered by the court are: length of the marriage, conduct of the parties during the marriage, the parties' ages, health, station in life, occupations, amount and source of incomes, vocational skills, employability, respective estates, liabilities and needs, the opportunity of each party for future acquisition of capital assets and income, and the present and future needs of the dependent children of the marriage.

In addition, the court may consider each party's contribution in the acquisition, preservation, or appreciation in value of their respective estates, and each party's contribution as homemaker to the family unit. Other considerations are the debt that has accrued and tax liabilities of the parties.

Tax Considerations

A divorce has important tax consequences. Decisions concerning custody can affect your taxes, including your right to claim head of household status, dependency exemptions and the child care credit. Spousal support (alimony) payments may be taxable or deductible. Consult with your lawyer for the important tax considerations of divorce as they relate to your particular situation.

Obtaining Legal Representation

Your lawyer may assist you in the following areas:

Divorce is emotionally and financially complex. It is important to see a lawyer to protect your rights and your future. Your lawyer may help you to save your marriage by referring you to a marriage counselor. If divorce is unavoidable, your lawyer can help you take the steps to end the marriage.

If you choose to divorce, you should consult a lawyer so that you are advised of your rights to custody of your children, support and a fair division of property. Your lawyer can prepare the separation agreement, assure that timely steps are taken to obtain a divorce and advise you when unexpected problems arise. Your lawyer can also help you seek protection in the event your spouse threatens, harasses or assaults you, takes your children in violation of custody or visitation orders, or hides property belonging to the marriage.

The information presented in this article is general in nature, and is for informational purposes only. Please consult with an attorney for legal advice with respect to any specific matter.