Boston Divorce Attorneys

The Court Process

• First Steps of a Divorce
  
• Court Appearances & Temporary Orders
  
• Discovery
  
• Should You Settle or Go to Trial?
  
• Post-Judgment

First Steps of a Divorce

The filing of the Complaint for Divorce legally begins the divorce.  It is the document that asks the court to legally dissolve your marriage.  The document is served on your spouse to tell them they are being divorced regardless of whether or not they want to be. 

In Massachusetts, actions for divorce are filed in the division of the Probate and Family Court in the county in which either party lives, except that the action must be filed in the county where the parties last lived together if one of the parties still resides in that county.

Immediately upon serving the complaints, Supplemental Probate Court Rule 411 kicks-in.  This automatic asset restraining order reads, in part, as follows:

Parties to a complaint for divorce are prohibited from selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of any property, real or personal, belonging to or acquired by, either party, except as required for reasonable expenses of living, in the ordinary and usual course of business, in the ordinary and usual course of investing, for payment of reasonable attorney’s fees and costs in connection with the action, by written agreement of both parties, or by Order of the Court.

The parties to a divorce proceeding can either agree to settle or go to trial.  If they choose to settle, the parties will likely negotiate a settlement agreement which is a contract that settles all matters between the parties.  In this case, the court is involved only at the end of the process. 

The case will go to trial if the parties can’t settle.  The parties and their lawyers will present evidence by means of documents and testimony from the parties and other witnesses.  The judge then decides on the legal issues which are typically cutody and parenting plans, alimony and property distribution.

Court Appearances & Temporary Orders

Because typical divorce cases can take a full year, or more, to make it all the way through the court system, your first court appearance will be a hearing on temporary orders.  Obviously, you can’t wait that long for decisions or some support in areas; accordingly, the court will make a quick decision about who gets the kids, the car, money in the bank accounts, or the house for now.

Once each spouse fills out a financial statement summarizing their expenses, income and sources of cash, both parties – and their attorneys – will meet to discuss these issues before going before a judge to see which issues they can agree on.
Even though these temporary motion hearings are less formal than a full trial, you must be prepared and know exactly what you want.  You may have only a few minutes to ask for it, and since this temporary order is establishing the status quo, you need to make sure the matter is handled correctly because any attempt to modify it later may fall into the category of disrupting such status quo.

From the first time you walk into the courtroom, if you want to insure the future of your divorce – and protect the interests of you and your children – you need to recognize the importance of three things:

1.  Realize, now, that you and your spouse have separate and competing economic interests. 

2.  You must develop a complete understanding of all the things you and your spouse own, and all the debts that either or both of you are obligated to pay.

3.  From the very beginning, start considering what you believe to be an equitable division of your property considering all of the particular circumstances of your marital situation.

Women generally, but not always, make a mistake relating to the first point.  It is because they tend to spend the majority of the initial divorce period trying to figure out what went wrong in the marriage, while their husband may be selectively removing things from the home.  He may think that, because he was the one who actually paid for it, it is really his own property!

As you appear before the court, consider these five tips as you stand before the judge:

1.  Dress in a way that shows respect for the court.  You don’t have to buy new clothes, but halters, worn-out jeans and tee-shirts are not appropriate.  Don’t chew gum, eat or drink in the courtroom.

  2.  Always stand when the judge enters or leaves the courtroom.  The court officer will tell you when to sit and stand.  If you are in doubt, stand when the judge is standing.  You can usually sit down once the judge is seated, unless you are speaking with the judge.

3.  Speak clearly.  Since court proceedings are always recorded, you need to speak and not just nod or shake your head.  Listen carefully to the questions you are being asked, be direct and always ask the question being asked of you.

4.  Children should not be brought into court.  Many of the topics discussed in court are not appropriate for young children.  Arrange for a friend or relative to watch your children while they are in court.

5.  Your case may be “taken under advisement.”  This means the judge needs time to think about how to decide the case and will mail the decision to you once it is made.

Discovery

            Following temporary orders, the long and quite complex discovery stage begins.  Here, both sides begin the free flow of information back and forth in an attempt to discover relevant evidence, or that which may lead to relevant information, which relates to the 21 factors which relate to the equitable division of the marital estate.

The most common forms of discovery are interrogatories, Request for Production of Documents, Depositions and subpoenas for documents. 

As said documents contain a great deal of information that will help attorneys prepare for settlement or trial, your case may require documents for many categories of information or just a few.  Beyond Rule 410 Mandatory Disclosure, following is a list of the documents commonly requested as reported by Family Advocate.  Your attorney will indicate which of them you should obtain:

1. Financial statement
2. Estimated taxes/income tax records
3. Income tax returns
4. Personal property tax returns
5. Bank information
6. Loan applications
7. Broker’s statements
8. Stocks, bonds, and mutual funds
9. Stock options
10. Pension, profit sharing, deferred compensation agreement, and retirement plans
11. Wills and trust agreements
12. Life insurance
13. General Insurance
14. Outstanding debts
15. Accounts payable and receivable
16. Cash receipt books
17. Real property records
18. Sale and option agreements
19. Personal property records
20. Motor vehicle records
21. Information relating to corporate interests
22. Partnership and joint venture agreements
23. Employment records
24. Fringe benefit records
25. Employment contracts
26. Business records
27. Charge accounts
28. Membership cards
29. Judgments
30. Gifts and charitable contributions
31. Medical bills
32. Cellular, land-line and long distance charges
33. Tapes and photographs
34. Inventory of safe deposit boxes

Should You Settle or Go to Trial?

At some point in the divorce process, after discovery is complete, the emotional involvement of the parties has generally subsided to the level where negotiation begins by the parties in an attempt to resolve the contested issues.  No attorney is ever authorized to make an offer of settlement without their client’s knowledge.  If a settlement can be made out-of-court, a potentially costly trial can be avoided. 

Whether or not a settlement offer is accepted, the court will have already scheduled a pretrial hearing.  Here, the attorneys explain to the Judge what the case is about, clarify areas where the parties can agree, and identify those areas where the parties disagree.  The Judge will attempt to assist the parties in reaching an agreement.  While the judge would not force you to settle, the message becomes very clear.  In so many words, the Judge says, “Look parties, I’m your Judge.  As it appears to me, this is what the legal issues are.  Unless you can show me otherwise, I see it this way, and I would likely be inclined to rule as follows…”

If a settlement offer is accepted, or amendments thereto are agreeable to both parties, a settlement agreement is prepared.  This document essentially indicates which assets and liabilities will be allocated to each party.  It will also address the issues of custody and visitation – or the parenting plan – together with support and all other matters.  Once this settlement agreement is signed by both parties and their attorneys, it is filed with the court in the form of a binding court order.

If your case isn’t settled, it goes to trial before a judge.  There will be at least five people involved in the trial:  the spouses, their lawyers, and the judge.  Of these five, the judge will know the least about the parties, their circumstances, their children, and their marriage.  This method of resolving your issues is the most expensive, and you have the least control.  The judge decides, and that’s it.

A word about judges:  many people have an image of a judge as a wise, kind and fair person, and most are.  But some are not.  Like people, judges range from the superbly competent, wise and fair to quite the opposite.  Unless you absolutely know your judge, and your attorney has had considerable experience with him or her, your are spinning the wheel when you go to trial, and putting your future in the hands of a stranger.  Going to trial as a way of resolving the issues in your divorce case should be the last resort.

If the matter cannot be resolved by stipulation between the parties, a trial is scheduled at a future date.  The parties prepare to present the evidence to the court.  At trial, witnesses testify and documents are presented to the court.  At the conclusion of the evidence, the court will likely take the case “under advisement,” which means consider all the issues and write an opinion and judgment entry to be send to each party months following the trial.

Post-Judgment

Divorce actions do not stop once the final decree has been entered.  Post judgment modification and enforcement actions take place after the divorce has taken place. 

As post-divorce judgment modification attorneys, one of our pet peeves is that many times, the original divorce lawyer told the client to “sign here, we’ll fix it later by going back to court.  However, “fixing it later” is easier said than done. 

Massachusetts courts don’t like to deal with post-divorce judgment modifications.  In many cases it is viewed as whining, or buyer’s remorse.  Accordingly, the legal standard for obtaining a modification is that you have to show a material change in circumstances.

Child support, spousal support, and clauses relating to custody, visitation and the parenting plan are modifiable at any time.  Support payments may be increased, decreased, or canceled.  Both physical and legal child custody and visitation rights – or parenting time – can be modified if warranted by a change in circumstances. 

The only portion of your divorce judgment that, as a general rule, cannot be modified is the distribution of the marital estate.  The only time such judgment can be vacated is as allowed in Rule 60B – but your attorney must prove that your spouse hid assets and committed such egregious fraud upon the court.

Such material changes in circumstances can be best illustrated in the examples below:

Just because you got an order that gave you the support you need, you’re all set, right?  Guess again.  While non-custodial parents who are involved in their children’s lives are usually willing to pay support, lapses of payment do occur.  When they do, a former spouse’s family budget can be quickly and seriously threatened. Some non-custodial parents do not pay regularly, and some spend a lot of effort and energy evading their responsibility for their children.  The anxiety the former spouse feels when payments are not regular can easily disrupt the family’s life.  For this reason, Attorney Lucas M. and the staff attroneys will try to enforce the support order through other means.

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