Filing for Divorce
Before any paperwork can be filed in a divorce case, the parties must qualify to get a Massachusetts divorce. The residency requirement is such that the parties must have lived here for at least one year, or the reason for the breakdown of the marriage happened here.
In Massachusetts, the only way to end a marriage is for one spouse to file a Complaint for Divorce if the matter is contested or, if uncontested, for both parties to file a Joint Petition for Divorce in uncontested matters. Upon filing, the divorce process begins.
Contested or Uncontested Divorce? You Choose.
An uncontested divorce is one in which the parties agree on the terms such as custody, the parenting plan, child support, alimony, property division, and issues relating to future insurance needs. A contested divorce is one in which the parties don't agree and seek judicial intervention in order to resolve one or more of the terms. In reality, most cases fall into both categories throughout the divorce process. Most cases end-up on the uncontested docket when they are finished.
No matter which way you begin the process, along with your initial pleadings you must also file a certified copy of your marriage certificate and the R-408 Form, which includes certain statistical information about the parties and the marriage. There is a $215 filing fee, and an additional $5 fee for the summons in cases of a contested divorce.
Additional Requirements For Divorcing Parents
If there are minor children of the marriage, one affidavit disclosing care and custody and each parent's certificate of attendance from an approved Parent Education Program must also be filed. In Massachusetts, divorcing parents must attend a four-hour divorce class before a divorce is granted. This class emphasizes many important principles which divorcing parents need to learn and apply to their lives, including the important point that it is the parents who are divorcing, not the children. In April of 2010, the Probate and Family Court Administrative Office announced that, on a limited basis, use of a DVD program entitled "KidCare for Co-Parents: An Educational Program for Divorcing" may suffice should a judge determine that a waiver of attendance is deemed to be warranted.
The Docketing Process
Once cases are filed, they are assigned a docket number by the court and hooked-up with the Mass Courts system. That is the number of your case and must be identified on all pleadings and documents relating to your matter. The docket determines which judge will be assigned to your case. The first two letters of said number identifies the court. For example, Essex County divorce or paternity matters begin with ES, Middlesex County divorce and paternity cases begin with MI, Suffolk County divorce and paternity cases begin with SU, Norfolk with NO, Worcester with WO, and so on.
Complaints, Answers, and Counterclaims
In contested divorces, the person who files for divorce first is the Plaintiff. He or she is required to serve the summons or notice and a copy of the complaint upon the Defendant no later than 90 days after the filing of the complaint. Once you have proof of this, the court requires that proof of the "return of service" be filed as soon as possible after the service has been completed.
The next step in the legal process is the Answer and Counter-complaint. In most divorces, the recipient of the Complaint for Divorce will answer and file a countersuit. The countersuit, called a Counter-complaint, is in essence the same thing as a Complaint, but against the Plaintiff. The Answer will most often deny all allegations set out in the Complaint and ask that the Complaint be dismissed. The Counter-complaint will generally ask for relief similar to that asked for by the Plaintiff.
Once the complaints and cross-complaints have been filed, the parties will ordinarily make their first court appearance in order to establish temporary orders. At this time, both parties must file financial statements and, if there are unemancipated children of the marriage, a Child Support Guidelines worksheet.
One of the most common abuses of the divorce process is using the children as a negotiating pawn – raising child custody, parenting plan, and parental fitness issues – in order to gain an advantage in financial matters. Early on, temporary motion hearings are emotionally charged for both parents, and the tug-of-war between mother's rights, father's rights, court-appointed evaluators, and the like can frequently determine whether the parties will proceed with a contested or uncontested divorce.
If the parties do not immediately begin settlement negotiations, the next phase of the lawsuit is called discovery. Discovery begins with the parties exchanging the court-mandated Rule 410 discovery. To learn more about discovery, go here.
In Massachusetts, There are Minimum and Maximum Time Periods Before the Parties Can Get Divorced
If you are filing for a contested divorce on the grounds of "irretrievable breakdown," six months must pass from the original filing date before the parties can get a Pretrial Conference date, and get divorced from his or her spouse. There is also a 14 month "time standard" imposed by the court which means that the time period following a new divorce filing must not exceed 14 months, and the case shall be tried, settled or dismissed within this period of time.
On the other hand, uncontested divorce matters are normally heard and allowed by the court without any time limitations. Often times, we start divorces on a contested track and once both parties come to an agreement we "amend" the complaint to a joint petition and the court will accommodate the parties' wishes.
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Reading about filing and serving a complaint for divorce is one thing, but taking action with your case is another. If you're still unsure about where you stand, what to do, or what lies ahead with your case, don't think the uncertainty will take care of itself. Instead of burying your head in the sand, or reinventing the wheel, stick with what has worked for others. Call one of our Boston Family Lawyers now at (800) 763-1030 or e-mail us to set-up a free, no-obligation consultation at any of our local offices.