Abbreviated Overview of the Contested Divorce Process
In Ten Steps:
- Complaint for Divorce filed with certified Copy of Marriage Certificate (from city/town hall where the marriage license was issued).
The person filing the complaint is called the "plaintiff". The person who is served the complaint is called the "defendant." Other court forms are filed with the divorce complaint.
There are two kinds of contested divorces:
- fault; and
- no-fault (also known as irretrievable breakdown).
Fault grounds are identified in Mass. General Law, ch. 208 section 1 and include:
- adultery
- impotency
- utter desertion continued for one year next prior to the filing of the complaint
- gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium or other drugs
- cruel and abusive treatment
- failure to provide suitable support
- sentence of imprisonment for in excess of five years
Automatic Restraining Order
Upon the filing of a divorce with the Court, there is an automatic restraint on the parties from selling, transferring, encumbering, concealing, removing or disposing of real or personal assets at the commencement of the action. However, the restraining order does not prevent the use of assets for usual and ordinary expenses of living or in the ordinary course of business, investing, attorney fees and costs in the action or if the parties have a written agreement or order of the court. - ASSIGNMENT OF CASE: the court processes the divorce complaint by assigning a docket number and a judge, who will oversee the case. A summons is sent to the plaintiff or the plaintiff's attorney, who then gives it to a constable or sheriff for service to the defendant.
- Complaint Service: After the defendant is served with the complaint and summons, the defendant has 20 days to respond with an answer or counterclaim for divorce.
- Parenting Course: All parents with minor children must complete an approved Parent Education Program. Parties are supposed to register with an approved provider within sixty (60) days of service of the original complaint. The Court periodically produces a brochure reflecting the locations of these programs, which are conducted in many communities throughout Massachusetts. If a party must take the program out-of-state, a comparable program should be submitted to the court for preapproval. Many internet programs are not approved and will not be accepted by the Court.
- Mandatory Self Disclosure: Both parties have 45 days (from the date the defendant is served the divorce complaint) to exchange documents (also known as Supplemental Rule 410 production of documents). These include:
- (a) Three (3) years of federal and state income tax returns and schedules, including any non-public, limited partnership, privately held corporate returns for any entity in which either party has an interest, together with all supporting documentation for tax returns, including, but not limited to W-2's, 1099's, 1098's, K-1, Schedule C and Schedule E.
- (b) Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor children;
- (c) The four (4) most recent pay stubs from each employer for whom the party worked;
- (d) documentation regarding the cost and nature of available health insurance coverage;
- (e) Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401(k) statements, IRA statements, pension plan statements for all accounts listed on the 401 financial statement.
- (f) Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.
- (g) Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.
- Financial Statement: The preparation of a financial statement must be done carefully and accurately. Each party must sign his/her financial statement attesting that it is accurate. It is also signed "under the pains and penalties of perjury", which means that it is a crime to sign a fraudulent financial statement. In preparation for the next phase of the divorce, it is necessary to complete and file a financial statement with the court.
- Temporary Orders, Motions for Attorney Fees Pendente Lite,(pending the litigation) Motion to Vacate the Marital Home, etc. may be filed with the Court for determination. Which motion(s) is/are appropriate depends on the circumstances of each case. The most common Motion is the Motion for Temporary Orders, which is a temporary fix for many financial and parenting issues pending the resolution of the divorce. Typically, the parties meet with a court mediator and "stipulate" their agreement for certain issues. The matters that cannot be resolved are then brought before the judge for determination. The "stipulations" and any order decided by a judge, becomes legally enforceable. This means that these terms are now considered court orders, which may be enforced against a party, should that party not comply. Typical temporary orders address:
- Who has legal and/or physical custody of the minor children;
- How much child support and alimony, if appropriate, must be paid by one spouse to another;
- Parenting time between the parents and children;
- Maintenance of health, dental, vision and life and disability insurance;
- Which party shall have exclusive use and occupation of the marital residence;
- How marital house expenses are allocated to be paid;
- Discovery: Other forms of document and information exchange may occur and this is generally known as discovery. Some types of discovery include: Request for Production of Documents, in which the recipient must produce copies of documents; Interrogatories, in which the recipient must answer written questions under oath; Deposition: a meeting in which the party or a witness is questioned before a stenographer, who transcribes verbatim, the questions and answers.
Appraisals of real estate, businesses, retirement accounts etc. also occurs during this period. - Pretrial Conference: This is generally scheduled once discovery has been complete. A pretrial conference includes the preparation of a Pretrial Memorandum which is submitted to the Court and outlines the law and factual perspective of each party. The judge assigned to the case reviews these memoranda and financial statements submitted by the parties and makes recommendations for settlement. However, the judge does not hear "evidence" at this time. Although most cases settle with some or all of a judge's recommendation, many do not. It may be necessary for the matter to proceed to trial rather than settlement. Each party must weigh the cost of taking the matter to trial versus settling in order to determine what is best for him/her.
- Trial: This is when each litigant is given the opportunity to present his/her side of the story with the goal to persuade the judge to rule in his/her favor on each contested issue. However, it is important to note that information cannot be given to the judge in the form of "evidence" unless that information and its presentation is admissible under the Rules of Evidence.
Post-Divorce Trial
Appeal Process: This occurs only if the matter proceeds to trial and the judge's decision is faulty. An appeal may allow a higher court, either the Massachusetts Appeals Court or the Supreme Judicial Court, to review the trial judge's decision in order to determine whether it should be affirmed, reversed (in whole or in part) or remanded for further analysis.
View information about the Uncontested Divorce Process.
To learn more about the representation the firm offers, schedule your free initial consultation online or by calling toll free 888-388-6579.
