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.

A Tree Grows in your Office: A Metaphor for Divorce

We all know that to have a successful marriage, the relationship has to be nurtured and fed.  Spouses who do not pay attention to the needs of their relationship are doomed to grow apart instead of growing together.  But just because a marriage withers on the vine, doesn't mean that a divorce has to result in sour grapes.

Many of the problems that prevent people from having a successful divorce stem from the false assumption that divorce is an endpoint.

Divorce, like marriage, is a relationship.  Anyone who has been through a divorce can dispel the notion that a divorce is just an event, begun one day and over the next.  Divorce is a process, that takes time, requires patience, and still involves a relationship between spouses.  And when spouses have children together, that relationship doesn't end when the divorce becomes final, it continues for graduations, weddings, grandchildren and more.

Divorce, like marriage, is a relationship. 

Both at my firm and in many of the professional organizations I belong to, we are often searching for better ways to explain divorce to our clients.  If you begin by asking questions, you learn a lot about the potential client, but they don't learn much about you.  If you begin by trying to explain "processes" clients learn how they can get divorced, but not how to get divorced well.  Maybe we need a new model, a story that explains how a potential client can get from the end of their marriage to the beginning of the next stage of their life.

That story, like many stories, starts with a seed.

Now you might think that a bitter pill would be a better metaphor for the end of a marriage, but trust me, a seed is better.  Seeds have both a before and after, but you can't necessarily tell much about either of those places just by looking at the seed itself.

Many divorcing clients appear the same at the moment they enter my office, determined but a bit confused, having goals but also needing direction.  Like a seed, their current state is the result of a relationship that came before.   That relationship determines what kind of seed it is, but what the seed will grow into is not only controlled by its history.  It also matters where that seed landed, and how it is nurtured.

The organic process of how divorce cases proceed from start to finish, is similar in many ways to the growth of a tree from a seed.  Our goal is to develop a strong tree, able to withstand future storms.  But growth and strength don't happen overnight.  In fact, usually the process is too slow to be seen by the naked eye, but just because the process is slow doesn't mean the tree is standing still.

As one of my mentors used to say, settlement only happens when the case is ripe.  Just like the organic growth of a tree, settlement requires the addition of necessary ingredients to blossom.  A major component of settlement is time, but that's not enough.  You may also have to shine light on parts of a client's life and marriage that they'd rather leave dark.  But, in the end, the only way to wash away the dirt and create strength from vulnerability is to combine all of these elements to feed the next stages of life in a way that is balanced and leaves room for further growth.

And just as proper nurturing, light and time can lead to a healthy and strong future, ignoring any of these key elements leads to stunted growth.  Proper counsel for divorce clients requires paying attention to these needs for our clients, and as corny as it sounds helping them choose what kind of tree they want to be, and where they want to grow.

Mediation is often represented as a single tree, or leaf.  I'm not sure how so many mediators came to choose this as their symbol, but I think it fits.  Mediation doesn't take place among the forest of other divorces, or in the public eye of court.  Instead it takes place in the mediators office, away from other divorcing spouses and their situations.

A hallmark of mediation is about letting each set of clients come to a solution that they agree works best for their unique family.  Though comparisons may happen when they leave the mediators office, mediation doesn't require a comparison to how other people grew their seed, it's only about those two people and how they want to resolve their problems.

When two spouses are both independent and have the ability to grow their strength from within, then they only need the gentle nurturing of a mediator to reach a successful divorce.

But sometimes, clients need more:

Collaborative Divorce is about seeing the forest through the trees.  Similar to mediation, it takes place outside the public court forum.  But it is different than mediation, in that each client is provided with more support to help them grow within the protection of a professional forest.

Collaborative divorce is often referred to as a team approach to divorce, but team implies everyone working together all of the time (and billing the clients for all that time).  In reality, collaborative divorce is more like a set of gardening tools.  Each tool or person has a role that helps the spouses grow the strength needed to support their own forest after divorce.  Attorneys have different skills and training than coaches and financial planners.  Each team members provides different nurturing, or strengthening skills to allow both spouses to grow together and coexist, even if they didn't start out in equal soil.

Collaborative divorce lends itself well to complicated issues, or imbalances that might prevent successful mediation because the interdisciplinary nature of the different professionals allows them to fulfill the needs of clients who wouldn't have been able to grow to the same heights on their own in a mediation.  And since it also takes place far from the court house, the reflection of other groves doesn't block sunlight from this forest, allowing each tree to grow with only the restrictions they place on themselves.

But what if mediation and collaborative divorce are not options.  Is all hope lost?  Will my tree be cut down before it reaches it's full potential?  I'm not going to lie; it's harder to find common ground in the court process.  But that doesn't mean it's impossible:

Litigation takes place inside and outside of the courthouse.  While litigation requires that you always track the shadow of the law, you don't have to let it block out all the light.

Court is not an organic process.  It feels as unnatural as the sound-proofed walls that lined the courtrooms.  The litigation process is designed to collect and reflect enough of the natural light of your family, to allow you to survive, but not necessarily thrive.  Like a plant that's kept inside, it's not your natural environment, but with the right help it won't kill you.  Your growth will be restricted based on the rules of the court, and still might result in settlement but you will have to work harder to make that happen.

In some ways this means that the attorney you choose to help you in court is even more important than who you might choose for mediation or collaborative divorce.  If you choose a litigator who only knows the path to trial, then you will most certainly be firmly rooted in that path, and will have to take your chances with the Judge.  But if you choose a lawyer with the experience and drive to settle cases, they then will help you see the many paths that exist, even when you're limited to a particular landscape.  It might be harder to get settlement to ripen in the harsh unnatural light of court, but if the case is nurtured and prepared properly it is still possible.

Sustainable Growth

If you'll allow me one final stretch of the metaphor, remember that personal growth does not end at the end of a marriage, nor does it end when a client receives their Judgment of Divorce absolute. Proper care of a case requires consideration of how future growth will be supported, whether it can be made self-sustaining and whether the path you've provided will allow for sustainable growth for both the clients and their seeds.

Divorce is not an easy or happy subject, but like any transition in life it can be viewed as an end or a beginning.  Ending cases shouldn't be the goal.  The goal should be helping clients understand how to stretch their branches towards the light of better days.

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.

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Click here for more information about Divorce Options in Massachusetts.

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.

What does a Child Specialist do in a Collaborative Divorce?

Guest Post Introduction: Dr. Allison J. Bell, Psy.D. has been in private practice in Westchester County, N.Y. since 1987 and is specialty-trained in child-psychology, neuropsychological evaluation of children and marital therapy. For the past fifteen years, Dr. Bell has performed forensic custody evaluation in both Family and Supreme Courts in the southern New York State region. Dr. Bell serves as both a Divorce Coach and a neutral Child Specialist on Interdisciplinary practice teams and is a member of the Massachusetts Collaborative Law Council. Dr. Bell wrote the following guest post for us regarding:

THE CHILD SPECIALIST IN COLLABORATIVE DIVORCE

By Allison J. Bell, PsyD.

The Collaborative Divorce process is unique amongst methods of obtaining a divorce in that it offers the opportunity for children to express their needs and viewpoints to their parents, through a professional conduit, the Child Specialist.

Who is a Child Specialist, what does that person do, and why is it beneficial to families to have a Child Specialist as part of the Collaborative Divorce Team?

Child Specialists are licensed mental health professionals who are trained in mediation and collaborative divorce practice. They are practitioners who also have training and experience in child development, family systems and divorce counseling.

The Child Specialist is often brought into the process when issues surface regarding the development of a Parenting Plan, and when parents want to know more about how their children are faring during the process. Ideally, when attorneys know that there will be problems to be solved regarding children, the Child Specialist is part of the Team from the outset.

Divorce is a phenomenon that occurs in relationships between adults. Children bear the fallout of divorce, and often find themselves placed squarely in the center of their parents’ disputes. They may be totally blindsided by the announcement of divorce, or may have expected it all along, but either way, they have something to say about it.

The outcome research on the adjustment of children of divorce strongly suggests that children believe they are not heard, seen or considered adequately in their parents’ process. They specifically tell researchers that they suffer from being in the dark, from having too little meaningful information, and from being unable to have a voice about the outcome. It is not that they see themselves as equal decision makers; they don’t. Children simply want parents to acknowledge that the adult decision to divorce has a direct, long-term impact on kids.

The Child Specialist functions as a Neutral member of a Collaborative Divorce Team, consulting to both the parents and the team members. The Child Specialist is the only team member who sees everyone in the family, and therefore has the unique opportunity to shed light on that family’s particular dynamics.

The Child Specialist begins by meeting with both parents in order to learn about the children, from a neutral perspective. The Child Specialist then meets with the children, together and individually, and offers them an opportunity to express their needs and concerns about the divorce. These meetings also help the children learn more about the divorce process and create a safe space for their emotional experience. It helps them to recognize when/if they are being put in the middle, and may offer them tools to be able to extricate themselves from this position.

The Child Specialist provides feedback to the parents in a five-way meeting with the Coach present. This way, the parents and the Coach hear the same information and have an opportunity to ask questions that may be relevant to developing the Parenting Plan. If children are in distress, the Child Specialist may make referrals for treatment or evaluation as needed. The Child Specialist’s perspective can help alleviate conflicts pertaining to the children, and allows the parents to consider post-divorce parenting with the voices of their children center-stage.