Alternative Dispute Resolution (ADR)
Child Custody In Massachusetts
Child Support and Paternity
Property and Debt Division
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Massachusetts has both fault and no-fault divorce. This means that a couple can file for divorce citing “irretrievable differences” for a no-fault proceeding. For a fault divorce, certain grounds need to be proven to the court in order to be granted. It is more uncommon in Massachusetts for couples to take the route of a fault divorce because of the extra steps of proof involved. Some of the grounds in a fault divorce include:
- Desertion for one year
- Habitual intoxication
- Cruel and abusive treatment
Divorce Waiting Period
In Massachusetts, typically once a judge approves the agreement to divorce, the action is not official for roughly four months. In Massachusetts, the waiting period may differ depending on the type of divorce that is being filed. Additionally, there is a one year residency requirement in order to file.
The Different Types of Divorce
There are four types of dissolution of marriage in Massachusetts – contested fault, uncontested fault, contested no-fault and uncontested no-fault. The one that is filed will depend on whether or not each spouse is in agreement with all the components, such as, child custody, among other factors. When elements like visitation and support are contested, a court hearing is often necessary.
Depending on the situation and the family involved, other options may be explored as an alternative to divorce. In Massachusetts, it’s possible to end a marriage through an annulment and also through filing a Separate Support action.
An annulment essentially treats the union as though it never legally occurred. There are instances when a marriage is considered “void” from the beginning, such as marrying a close family relative. Equally, if a union happens between two parties and one is already married, this too is deemed a void alliance. There are other grounds to file a Complaint for Annulment by proving in court one of the following conditions is true::
- A spouse lacked the mental capacity to marry due to drug or alcohol intoxication
- A spouse lacked in the ability to sexually perform and was essentially impotent
- A spouse committed fraud by, for example, using the other person for a green card
- A spouse was under the legal age limit of 18
Annulments are rarely granted. For this reason, the evidence should clearly prove an invalid marriage. An attorney can inform you on the types of proof that will be necessary to present in court.
In Massachusetts, filing for Separate Support is similar to being legally separated. The matters that couples can work through in a Separate Support action will address the details of child custody, support and visitation. A judge has the option to rule on other issues as well that will affect the children.
A Separate Support ruling will give each spouse the freedom to live separately. This might be a viable option for couples that want some time to save their marriage and reconcile. Other benefits may include staying on a spouse’s insurance plan or gaining the reward of a joint tax return. Regardless of the reason, the court system in Massachusetts adopted this action for couples that were not ready to get divorced.
Alternative Dispute Resolution can be mediation, arbitration or negotiation; in each instance, the goal is to eliminate a trial. Mediation is the most commonly used of the ADR types in divorces in Massachusetts. A neutral third party acts as a mediator and can help to arrive at sound solutions that work for the parties involved. This type of resolution, however, only works with spouses that are respectful with one another. Some of the advantages to using ADR include:
- Saving money and time
- Maintaining a post-divorce relationship with your spouse
- Having disputes settled by offering a wide range of solutions
In some ADR, the mediator can make rulings on the outcome or recommend solutions to the court. There are many choices in resolution that can also be binding (legal) and nonbinding. In all types, however, it is advised to have final contracts reviewed by a consulting lawyer.
Child Custody Determinations
A divorce is a painful time that affects the whole family, particularly the children. When decisions are made by the judge, whether on support or visitation, rulings are based on what is in the best interests of the children. In Massachusetts, spouses are required to write out a parenting plan. If the parents can’t reach a conclusion on custody, the court will make the determination.
There are four types of child custody:
- Sole legal custody. This type of custody gives only one parent the right to make decisions on the medical care, dental care, educational needs and religious affiliations, among other factors for the children.
- Shared legal custody. Both parents are responsible for the major decisions for the children.
- Sole physical custody. In this type of custody, the children reside with one parent.
- Shared physical custody. Both parents have overnight visits and spend time with the children.
Because the welfare of the children is the biggest consideration in custody rulings, the court will deny parental rights in cases that involve domestic abuse, sexual violence, neglect and abandonment.
Custody will be awarded as either joint or sole custody. If a parent receives physical custody, the other parent may have visitation. Visitation usually works on a regular schedule that accommodates the needs of the children to see both parents. If parents can communicate effectively, the visitation schedule can be more flexible.
A divorce may change the dynamics of when grandparents can visit the grandchildren, especially if their son or daughter has limited access to the children. Grandparents do not have the right to see the grandchildren unless there is a court order in place. The court wants to see that the visits would be in the best interests of the grandchildren and that they had a special relationship together.
Despite the marriage being over, the court holds the position that children should benefit from the incomes of both parents. Factors that are considered in determining the amount of support include:
- The gross income of both parents
- The amount of parenting time that has been granted to each spouse
- The number of children in the household
- The costs of caregiving, health coverage and other expenses for the children
Often support ceases at the age of 18, however will continue in the event the child is still working on graduating from high school. Also, child support might be in place until the child turns 23 if he or she is attending college.
Child Support Enforcement
If a ruling has been made official on child support, the court will enact certain measures to enforce the payment schedule. If a spouse falls behind or stops paying child support, consequences may include:
- Applying a levy against a bank account
- Suspending a driver’s license
- Revoking a professional license
- Increasing income withholdings
- Intercepting tax returns
- Placing a lien on real estate
- Seizing personal property
In addition to the penalties, those that are delinquent on child support are subject to added fees and interest.
Establishing the paternity of children is an important action, especially as it directly affects child support. Knowing the paternity of children can aid in medical information that could be helpful and also life-saving. In other cases, knowing the father can be beneficial in obtaining life insurance benefits. Also, determining paternity can give the parent the opportunity for visitation and a chance to enhance the lives of the children.
Once married, all assets and debts belong to both spouses regardless of how and when the property was acquired. In Massachusetts, even an inheritance can be considered marital property. Some of the points the court will use to assess property division include:
- The length of the marriage
- Conduct during the marriage
- The age of the spouses
- Health of both parties
- The liabilities of both spouses
Division Of Property
Because Massachusetts is an equitable state, the division of property is not split down the middle. Instead, the court will rule based on making a fair and reasonable settlement for each party. Often the ruling is based on the financial needs of each spouse. Some of the assets and debts that are divided include:
- Real estate assets including the family home
- Household items including furniture and clothing
- Retirement assets such as IRA accounts and 401(k) funds
- Stocks, bonds and pensions
- Credit card debt and unsecured debt
The Massachusetts court system has a lot of discretion in dividing marital assets. For this reason, it’s advisable to seek thorough legal information from a divorce lawyer. In the case of a prenuptial agreement, even this contract could be factored into the final outcome. For example, if the prenuptial agreement states a vintage piano belongs to the husband and the instrument is valued at $30,000, this monetary amount might come off the portion he will get when dividing marital assets.
Alimony is financial support for an economically dependent spouse. In Massachusetts, spousal support is determined largely by the length of the marriage.
For example, if a couple divorces after five years of marriage, the maximum number of years of alimony will likely be two and a half years. The gross incomes of both spouses are combined and alimony payments are not to be greater than 35 percent of the difference between the parties.
The court has a great deal of discretion in the outcome of rulings on alimony for a marriage that lasts more than 20 years. There are several types of alimony available to divorcing couples, and the kind chosen will depend on the circumstances of a marriage. A divorce attorney can highlight the options and benefits of each type.
Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements are can help to protect the interests of each spouse before and after being married. A prenuptial agreement is constructed before the marriage is legal and can help determine ownership of certain property in the event of divorce or death. Both agreements serve a wide range of functions including:
- Protects intended beneficiaries
- Shields you from debt your spouse may carry
- Guards against future pain and uncertainty from money issues
- Protects a family business from being divided and sold
After the initial agreements have been made, circumstances in life can change abruptly, requiring alterations to the previous contracts. Some of the situations that can warrant a modification include loss of employment, bankruptcy, a debilitating injury and job relocation. Revisions to the divorce agreement might include the following areas such as:
- Child support
- Spousal support
- Child visitation revision
- Child custody changes
- Other financial constraints
Recent Massachusetts guidelines allow for a spouse to file a Complaint for Modification order based upon an inconsistency. The discrepancy, for instance, could be in the existing child support paid and what the amount would be in the Massachusetts child support guidelines.