What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because you would then technically be married to two people.

2. If the Nisi period crosses December 31, then you are considered married for that tax year which means you must file under "joint" or "married, filing separately" and cannot file as "single".

3. Under some health insurance plans you may not be able to stay on your ex's health insurance (as explained further in our previous post, Will I be able to keep my health insurance after the divorce?), but at least during the Nisi period you can stay on the health insurance.

When can I (or will I) get re-married?

According to a Boston.com article a woman in Ohio learned via Facebook that her Husband had re-married, despite still being married to her. While the article suggests that there is some disagreement about whether or not the original marriage was valid, it's clear that the Husband should have waited to have the validity of his first marriage determined prior to getting married again. He has risked having his second marriage void, if the first is found to be valid.

This situation is not typical because most clients seeking to end a marriage state that they are not in a rush to get married again. However, according to the U.S. Census Bureau between 66 and 75% of people who get divorced get remarried. Many of these remarriages are less than one year after the divorce.

At the very least you are required to wait to get remarried until the day when you are officially divorced. In Massachusetts there is a waiting period (90 days for Complaints for Divorce, and 120 days for Joint Petitions) until a Divorce becomes final after the hearing. A Judgment of Divorce Nisi does not become absolute until 90 days later, and you are therefore technically still married during that waiting period. If you want your second marriage to be valid you must wait at least that long before getting remarried.

Although this may seem like an unusual problem, since many couples are now choosing long-term separation over divorce, the eventual divorce may occur well after the marriage has practically ended. In fact, the new relationship is more often the impetus behind the ending of a long-term separation. For a discussion on the other issues raised by long-term separation vs. divorce check out our previous post.

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.

Divorce and Taxes: 6 Issues to Be Aware of - Issue #1. Marital Status

There are two certainties in life: Death and Taxes. We've already written about how divorce and estate planning are interrelated, but what about divorce and taxes?

In all cases a divorce will affect some part of your tax return. In most cases there will be numerous changes in your income tax liability after your divorce and you should give consideration to what changes will take place because this could be a factor in determining the best divorce settlement for you. In some cases these changes may be complicated enough that your attorney should involve an accountant or certified financial planner to help analyze the different options. Our next five blog posts will explore the various issues raised by the interrelation of divorce and taxes so that you are at least aware of the issues to be on the lookout for.

Issue #1. MARITAL STATUS: The most obvious way that a divorce will affect your taxes is by changing your marital status. This is a change to your federal income tax return that will happen after every divorce case.

In Massachusetts, after the expiration of the Divorce Nisi waiting period (90 days from the issuance of the Judgment of Divorce Nisi) when the Judgment of Divorce becomes final you are officially divorced and you are no longer qualified to file a tax return as "married, filing jointly" or "married, filing separately". The key date for determining your tax year marital status is December 31. If your divorce nisi period crosses December 31, then you are technically still married in that tax year and must still file under a married status.

Obviously, marital status has a significant affect on your income tax liability and if you are scheduling an uncontested divorce hearing in the Fall you might want to consider whether it makes sense to schedule it early enough to change your status by December 31, or wait.

Click here to read Divorce & Taxes - Issue #2. Child Support v. Alimony.

What happens after my Divorce Agreement is approved by a Judge?

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 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 90 days after the divorce hearing date.

Therefore, for 90 - 120 days after your agreement is approved you are still officially married.  During that "nisi" period you cannot remarry, and your tax and health insurance status will be as if you are married.  Once the "nisi" period passes you are officially divorced.

During and after the "nisi" period your Agreement will remain in effect unless the Judge or the Agreement directs otherwise.  This means that usually immediately after your hearing you start acting as required by the Agreement.  If you owned any joint property, the Agreement will likely require you to complete certain paperwork during this time period, such as transferring car titles, or signing deeds. In addition, if you agreed to the transfer of any retirement account you should complete any necessary QDROs as soon as possible and present them to the court for approval and then the retirement account plan administrators for implementation.

Once these transfers are complete there usually isn't any further work for your attorneys, but there may still be some to-dos for you to successfully complete your divorce. You should review your Separation Agreement to ensure that you are currently in compliance with and continue to comply with all of your obligations.

To assist you in completing these processes we have provided you with a Closing Checklist below:

☐      Pay final bill for professional services & fees to your attorney.

☐      Retrieve original files from your attorney.

☐      Store file in secure, safe location.

☐      Update Post Office with any new information (change of address or name).

☐      Update Registry of Motor Vehicles with any new information (change of address or name), and file updated titles for any motor vehicle transfers required by Separation Agreement.

☐      Close any joint accounts as required by Separation Agreement.

☐      Notify your accountant and/or financial planner of any account changes due to your divorce, and the change in your marital status.

☐      Notify your employer human resources department of change in marital status as of the Judgment of Divorce absolute date.

☐      Except as required by Separation Agreement, update beneficiary designations and authorized users on any accounts (bank, retirement, life insurance, etc.).

☐      Schedule Consult for updating Estate Plan (previous estate plan likely voided by divorce).

☐      Update all online account passwords (bank, credit card, loan, e-mail, social networking, etc.).

☐      If Property Transfer: File Quitclaim Deed with proper Registry, and obtain time-stamped copy for evidence of recording.

☐      If Name Change: Obtain Certified Copy of Judgment of Divorce Absolute (after 90 days) directly from Court.

☐      If Name Change: Provide Certified Divorce Judgment to Social Security Administration with Form SS-5 .

Other Resources:

Modification - In the event of a change in circumstances you may be entitled to a Modification of your Agreement, for more information visit: www.criticalmassdivorce.com/modification

Contempt – If the other party fails to meet an obligation required by the Agreement you may be entitled to Contempt sanctions, for more info visit: www.criticalmassdivorce.com/contempt

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!

Divorce Ceremonies vs. the Divorce Nisi

CNN recently reported on the developing trend of divorce ceremonies in Japan. These ceremonies in many respects parallel weddings, with friends and relatives present and a reception afterward. However, the substance is often cathartic instead of celabratory. For example, during the ceremony both the husband and the wife together smash a wedding ring with a mallet, they eat at separate tables during the reception, and the musician at the reception sings about breaking up.



While the existence of these ceremonies seems diametrically opposed to the American way of handling a divorce (parodied here by Indigo Productions), the thinking is to provide a symbolic ending so that both the husband and the wife can move on to the next stage of their lives.

In Massachusetts, the closest thing to a divorce ceremony that we have is the uncontested divorce hearing. Very different from a trial, the uncontested divorce hearing occurs when both parties agree to the divorce and have reached an agreement on all outstanding issues. After a short approximately 10-15 minute hearing in which the Judge reviews the agreement and a basic case is entered into the record, the Judge declares that the parties have demonstrated sufficient facts to obtain a divorce and that a Judgment of Divorce Nisi will be granted thirty days after the hearing. Ninety days after that, an absolute Judgment of Divorce is entered and the couple is officially divorced. Basically, it takes four months of waiting from the last date that you go to court before you are technically divorced. How unceremonial.

How Long after a Divorce do I have to wait before getting Re-married?

In Massachusetts there are statutory waiting periods that control when the divorce becomes final (also called Absolute). Until the divorce is officially final you cannot remarry anywhere without committing bigamy (i.e. being married to two people).

In Massachusetts the length of this waiting period depends on the type of divorce case.

In a Joint Petition for Divorce under Section 1A of M.G.L. c. 208, if both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

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.

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. If the parties are unable to settle their divorce case, then 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. Similarly after 6 months have passed since the date of service, a Complaint for Divorce may be settled and a Separation Agreement presented to the Court. If the Court approves the Separation Agreement then the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

This means that if you file a Complaint for Divorce, whether or not there is a trial or a settlement, you are not legally and officially divorced until 90 days after the issuance of the Judgment of Divorce Nisi.

In addition, once the divorce is final there is typically a three-day waiting period for obtaining a marriage license after the application is submitted to your town or city hall. However, it is possible to apply to the Probate Court for a waiver of this three-day period for good cause.