From a legal perspective, whether the divorce is based on fault grounds or no fault grounds (referred to as “Irretrievable Breakdown”), three general issues must be resolved in order to complete the divorce: (1) Support (Alimony and/or Child Support), (2) Property Division and (3) Custody and Visitation. The best an attorney can do in predicting to you “what’s going to happen” is to advise you of the law on these three issues and share with you what the attorney has observed in other cases. That is not a prediction or guarantee of what will happen in your situation, however. Unfortunately, there is no way for any attorney to predict the exact results of this process. What Attorney Vowles will do is make sure that you make decisions about you and your family with as much information as possible.
(a) Filing for Divorce
You can file for divorce on either “fault” or “no fault” grounds. When you file a divorce on “no fault” grounds, this means that you do not have to offer evidence of any wrongdoing on the part of your spouse. You are simply saying that your marriage has suffered an irretrievable breakdown and there is no possibility of reconciliation. As a practical matter, most divorces are filed on “no fault” grounds. It is also important to understand that filing on “fault” grounds generally has very little to do with the resolution of the financial issues (such as Alimony, Child Support and Property Division) involved in your divorce.
A “No Fault” Divorce can be filed by both parties (“1A” Petition) or by one party (a “1B” Complaint).
In a “1A” divorce, both the husband and the wife (and their respective attorneys) are able to agree on all issues. The “Agreement” is reduced to writing, signed and filed with a Joint Petition For Divorce, Financial Statements and Affidavits Of Irretrievable Breakdown. These documents are filed with the Probate Court, and the court sets a hearing date (usually within four to six weeks after the papers have been filed.) You and your spouse appear in court for what is called an “uncontested hearing.” Generally, the hearing involves about three minutes of questions and answers to the judge, who approves your “Agreement” and enters a judgment of divorce. A “1A” Divorce does not become final until four months after the hearing date. It becomes final automatically, however, and you do not need to go back to Court.
Alternatively, one spouse, seeking divorce on the “no fault” grounds of irretrievable breakdown, can initiate a “1B” Divorce by filing a Complaint For Divorce. Generally, in this type of divorce, both husband and wife acknowledge that the marriage is not salvageable, but they have not been able to immediately agree on one or all issues.
By statute, the divorce cannot be heard or tried until six months from the date of filing. In practice, the divorce will not be tried for at least six months, and most likely closer to a year or more after the filing date. During this period of time, both attorneys usually conduct what is known as “discovery” (explained below) and typically have at least one negotiating conference to try to reach an agreement. Most often, a Separation Agreement is ultimately negotiated and the hearing proceeds as it does in a “1A.” If no agreement is reached, the divorce is actually tried before a court, with both sides presenting evidence and witnesses. The “1B” divorce automatically becomes final three months after the hearing or trial. It becomes final automatically, however, and you do not need to go back to Court.
ii. “Fault Grounds” Divorce
In addition to irretrievable breakdown as a ground for divorce, there are, in Massachusetts, seven “fault” grounds upon which to base a Complaint For Divorce. Those grounds are:
- Cruel and abusive treatment (the most common);
- Gross and confined habits of intoxicatino (including drug abuse);
- Prison sentence; and
In general, what occurs during the interim period here is identical to what is described above in a “1B” Divorce, including “Discovery” and “Temporary Orders” (described below.) Again, as mentioned above, most divorces are filed on “no fault” grounds. It is also important to understand that filing on “fault” grounds generally has very little to do with the resolution of the financial issues (such as Alimony, Child Support and Property Division) involved in your divorce.
(b) Temporary Orders
“Temporary Orders” may be the first experience you have with a Judge and the Probate Court system. After a Divorce Complaint is filed, if you and your spouse cannot agree as to the way in which you will order your lives during the interim period before the Court has a trial or the parties negotiate a Separation Agreement, Motions for Temporary Orders are filed. Most commonly, the orders sought are temporary support and temporary physical custody of children. Once in the Courthouse on one of these motions, you are ordinarily first sent to the “family service office” for mediation. If mediation proves unsuccessful, the matter is presented to a judge for decision. Temporary Orders, once made, typically remain in effect until trial or agreement is reached.
“Discovery” is simply a legal technique for getting information. It can be accomplished informally with one side simply asking for information or it can be framed more formally, requiring responses under oath. Typically, in a divorce action, the following more formal discovery techniques are used:
- 1. “Interrogatories,” in which a list of written questions is sent to one party who must answer those questions under oath;
- 2. “Requests for Production of Documents,” in which one spouse sends a list of documents he or she wishes to review to the other spouse. The documents include tax returns, bank statements, and the like; and
- 3. Depositions,” in which a party is orally questioned, under oath, by the other spouse’s attorney and the questions and answers are taken down and transcribed by a stenographer.
While most attorneys utilize discovery as a legitimate means of obtaining information and preparing for a trial, it is also unfortunately and occasionally used to harass. Whatever the goal, however, it is a proper and legitimate tool if used appropriately. Also, you will work closely together with your attorney in responding to, and initiating, discovery.
If the parties cannot agree on one or more issues, the parties will present their evidence and arguments to a judge at trial and the judge will decide the disputed issues.
Over 90 percent of divorces are settled prior to trial by agreement of the spouses. Should your case go to trial, which is unlikely, you and your attorney will spend a good deal of time preparing for it, so that you will know precisely what to expect long before the trial date.