Divorce For Opposite-Sex Couples
Divorce is a predictable process that divides property, apportions debt, and assigns responsibility for children when a marriage ends. It is important for your attorney to know established law, to keep up with recent developments, and to be alert to new and untested issues that your case might present. Your attorney should have good negotiation skills and the ability to litigate a case to judgment if negotiation fails. The ability to take a case to trial is often the key to settlement.
How long does it take to get a divorce?
It depends. For couples who are divorcing amicably and filing a joint petition, usually only a single court appearance is necessary and the divorce can take as little as about 4 months. Of course, if the parties cannot agree on property and custody issues and the case goes to trial, it will take much longer.
Do I have to allege cruelty or adultery to get a divorce?
No. Massachusetts is a “no fault” state, which means that an irretrievable breakdown of the marriage is a sufficient ground for divorce.
Do both spouses have to file for divorce?
No. A divorce complaint can be filed by one spouse or a joint petition can be filed by both spouses. A divorce complaint that is filed by one spouse can be converted to a joint petition later on if the parties can agree on property and custody issues.
Is Massachusetts a community property state?
No. In a community property state, all property owned by either spouse is considered marital property and is divided 50/50 in a divorce. But this is not the system in Massachusetts. Divorcing spouses in Massachusetts should not assume that property will be divided down the middle.
How is property divided in a divorce?
Massachusetts is what is known as an “equitable distribution” state. An equitable division of property is not the same thing as an equal division. The goal is to divide property in a way that is just and fair to both spouses and this principle often results in something other than a 50/50 split. The law lists several factors that a judge will take into consideration if she or he rules on the property division. Knowing what a judge will consider if a divorce goes to trial makes it easier for divorcing spouses to reach an agreement without the expense of litigation.
Does Massachusetts recognize common law marriage?
No.
What are the tax consequences of divorce?
In general, there is no tax on the transfer of marital property. And there is no tax penalty for transferring pension funds pursuant to a divorce judgment. However, because the federal government does not recognize same-sex marriage, the tax consequences of divorce are not the same for same-sex spouses as they are for opposite-sex spouses. If you are a gay man or lesbian seeking a divorce, it is critical that you consult someone who is familiar with this differential treatment. For many people, divorce is one of the biggest financial decisions a couple can make. The larger the marital estate, the more complicated the division of assets. This is why attorneys frequently consult with tax and other financial professionals.
What will happen to the kids?
Custody of children is an area of law that is continually developing. Massachusetts courts do not think in terms of parents’ rights; they think in terms of what is in your child’s best interest. The “best interest of the child” can mean different things in different contexts. If you expect disputes over the children, it is important that your attorney understand and have experience with child custody issues.
Will I be able to move out of state with my children after a divorce?
Perhaps. If you are a custodial parent and your ex-spouse does not agree to the move, you will need the court’s permission to move out of state with your children. In some instances, you will need the court’s permission even to move within Massachusetts with your children. How the court evaluates your request depends upon the custody arrangements already in place. If you are the primary residential parent, the court will consider the advantage to you of moving, the disadvantage to your ex-spouse if you move, and the overall effect the move will have upon your children. If you and your ex-spouse have shared physical custody, the court will ask whether it is in your child’s best interest to move with you or to remain with the other parent.
Can a divorce judgment be modified if circumstances change?
Yes. The terms of a divorce judgment can be modified if there has been a substantial change in circumstances since the judgment entered.
A considerable body of law has developed in each of these areas. Being familiar with existing law and being alert to new developments is critical to providing good legal counsel.