The 10 most frequently asked questions about divorce in Massachusetts

How is action for divorce initiated?
An action for dissolution of marriage, or a divorce, is a lawsuit brought by one spouse against the other. The spouse that initiates the lawsuit is called the plaintiff, while the other spouse is called the defendant. The complaint must be served by a sheriff or constable either on the other spouse or, with authorization, through the spouse's attorney.

Does it Matter Who Brings the Action?
No, There is no negative connotation attributable to the spouse who brings the action or to the person who defends the action. Some attorneys like to be in the position of bringing the action because, to a certain extent, the attorney can control the pace of the case. Also, if the case must be tried in court, the plaintiff tells his or her story first to the judge and, as the saying goes, "first impressions are lasting impressions."

What Percentage of Cases are Settled Versus Tried in the Court?
Approximately 75 percent of all cases are settled out of court.

What is an Uncontested Divorce?
An uncontested divorce occurs when the parties reach an agreement on the division of their assets, the payment of alimony and child support, custody of the children and miscellaneous matters relating to the divorce.

If the Case is Settled Out of Court, Must You Still Go Before a Judge?
Once a case is settled, the parties and their attorneys must go before the judge in a simple, uncontested hearing. The judge reviews the parties' financial affidavits and approves the settlement. The terms of the settlement will be incorporated into the judgment for dissolution of marriage.

How Long Does a Divorce Take?
Generally the divorce process takes between 9 and 12 months. However, if the Divorce is uncontested the process is quite faster.

Does a Spouse Have to Prove Fault on the Part of the Other Spouse to Obtain a Divorce?
We have no-fault divorce in Massachusetts . This means that either party can bring an action for dissolution of marriage based on irretrievable breakdown. However, if the parties cannot settle their case, fault can be taken into consideration by the judge when he or she makes a determination on the amount of alimony and property distribution. Neither spouse can prevent the divorce if the other thinks the marriage has broken down.

How is Property Divided in Massachusetts?
There are no set formulas for the division of property. All assets acquired during the marriage, whether by gift, inheritance or through a spouse's employment, are included in the marital pie. Massachusetts has equitable distribution, which means that the marital pie is divided in a manner which the court feels is equitable. There are 17 factors which the court can consider in dividing these assets, including the length of the marriage; the causes for the dissolution of marriage; the age, health, station, occupation, amount and source of income; vocational skills; employability; estate; liabilities and needs of each of the parties; the opportunity of each for future acquisition of capital, assets and income; and the contribution of each of the parties in the acquisition, preservation or appreciation value of the assets, needs of the children. The court also must consider the value of the homemaker's services in dividing the assets in the marriage.

How Is the Length and Amount of Alimony Determined?
The same factors which are considered by the court in determining the asset division are considered in connection with the determination of alimony, plus a consideration as to whether the parent with custody of minor children should obtain employment outside the home. The initial analysis for determining the amount of alimony is the needs of the alimony recipient and the income of the spouse who is asked to pay alimony. As with a division of the marital pie, there are no formulas for determining the amount of alimony or the length of time during which it is paid. Generally, the longer the marriage, the longer alimony will be paid.

What Does a Divorce Cost?
Attorney's fees are to be based upon a number of factors, including the time expended, the complexities of the issues involved, the degree of difficulty of the matter and any extraordinary time or demands placed upon an attorney which would prevent an attorney from representing other clients. Of these factors, the time expended is generally the most important. Hourly rates of attorneys in Worcester County who specialize only in matrimonial law range from $100 to $275 per hour. Attorneys will require that a retainer be paid at the beginning of an action. This is typically viewed as an advance against the final fee, and a refresher retainer may be requested if the bill to date exceeds the amount of the original retainer. The retainer is usually not the total fee. A written retainer agreement which specifically sets forth how the fee will be determined is frequently executed by the attorney and the client.

Preparing for divorce - a Pre-Divorce checklist
Make copies of the following documents
1. Address Book
2. Federal and State Tax Returns for Past Five Years
3. Business Records and Financial Statements
4. Personal Property
5. Small Business Ownership Records
6. Employment Benefits
7. Loan Documents and Applications
8. Miscellaneous Income and Assets
9. Bank Statements and Cancelled Checks for Past 2 years