These are the basic steps to a “Contested” Divorce in Massachusetts. Always remember that your case is unique. Depending on specific factors in your divorce regarding the division of your assets, the appropriate parenting plan for your children, the appropriate amount of child support and/or alimony, your case may require more or fewer steps than those listed below.
1. FILING THE DIVORCE COMPLAINT
a. A divorce is started by the filing of a document called a Complaint for Divorce. More often than not, your divorce will be based on an irretrievable breakdown of the marriage. However, there are additional grounds for divorce which may be applicable to your situation. You will be advised as to which grounds for divorce may be appropriate to yours. The grounds for divorce may have some bearing on the length of time it will take you to obtain a divorce.
b. Once Filed:
i. Summons: Once filed, you will receive a summons from the Court. The summons and a copy of your Divorce Complaint must be served on the other party in-hand by sheriff or constable.
ii. Automatic Restraining Order: In every divorce action, an automatic restraining order becomes effective against the plaintiff upon the filing of a complaint, and against the defendant upon service of the summons and complaint or any other acceptance of service by the defendant. The precise terms of the automatic restraining order are laid out in detail in a document served with the Complaint for Divorce. To paraphrase, the order prevents either party from selling, transferring, encumbering, concealing, assigning, removing or disposing of any property belonging to either party except as required for reasonable living, business or investment expenses in the ordinary and usual course, or to pay for reasonable attorney’s fees connected to the divorce action; the order includes a restriction against incurring any further debts that would burden the other party’s credit, and against directly or indirectly changing the beneficiary of any life insurance policy, pension plan, retirement plan or investment account, or causing a party’s minor child to be removed from an existing insurance policy. The only exceptions to the automatic restraining order are by the written consent of the other party or by Order of the Court. The automatic restraining order is vacated upon the entry of Judgment of Divorce or Judgment of Separate Support.
iii. Financial Statements: At each court appearance in a divorce proceeding you must file an accurate, updated financial statement that accounts for all of your income, assets and liabilities. The financial statement helps both the Court and your counsel to understand your financial situation. Because you sign the financial statement under the pains and penalties of perjury, it is important to be as forthcoming, accurate and thorough as possible on your financial statement. You must also attach the prior year’s Form W-2 (or the equivalent applicable tax form) to each financial statement filed with the Court.
2. TEMPORARY ORDERS – potential initial court appearance
a. If a party needs immediate relief until the resolution of the case, such as temporary support for him/herself and/or any children, health insurance, custody or parenting time, or for a party to vacate the marital home, that party, through counsel, may file a Motion for Temporary Support and present the supporting arguments at a hearing. Generally, prior to being heard by the judge there is a meeting between the parties and counsel and occasionally with a court probation officer to discuss an amicable resolution of the immediate issues. If an agreement is reached, it will be presented to the judge for approval. Unresolved issues will be presented to the Judge for determination.
3. CASE MANAGEMENT CONFERENCE
a. Court Appearance: Some court’s will schedule a Case Management Conference. The Case Management Conference (“CMC”) is an occasion for the parties and their counsel to discuss in court the administrative management of the case, including such issues as a discovery deadline, pre-trial conference date and any other dates and deadlines, and to report to the Court their wishes regarding the same. The CMC is intended as an occasion to identify and formulate the issues, structure the discovery process and lead to sensible guidelines in resolving issues.
b. File Stipulation in Lieu of Court Appearance: In lieu of attending the in-court CMC, the parties’ counsel may file with the Court a “Stipulation of Case Management Conference,” which states the parties’ mutually agreed-upon requests regarding issues of administrative management. Because the CMC is a merely administrative tool and because a court appearance is expensive, you should work with opposing counsel to file a Stipulation in lieu of attending the CMC, whenever possible.
4. DISCOVERY – the process of gathering information
a. Mandatory Production of Documents: Within 45 days of service of the Complaint and summons, each party is required to provide to the other party documents listed under the Massachusetts Rules of Domestic Relations Procedure Supplemental Rule 410 (“Rule 410”). Your attorney will e-mail to you the list of documents required under Rule 410.
b. Common Discovery: Depending on the particular facts of each case, parties may wish to acquire documents and information other than what is required under Rule 410.
i. Request for Production of Documents: Each party is allowed to issue formal requests that the other party produce unprivileged documents, via a “Request for Production of Documents.”
ii. Interrogatories: Each party is also allowed, as of right, to issue thirty (30) questions called “Interrogatories” to the other party, which require written responses under oath.
The party receiving a “Request for Production of Documents” or “Interrogatories” must respond respectively with a “Response to Request for Production of Documents,” which includes all documents requested, or “Answers to Interrogatories” which includes accurate answers to each interrogatory. Answers to Interrogatories are signed under the pains and penalties of perjury.
c. Additional Discovery: Depending on the particular facts of each case, parties may wish to engage in further discovery using various other tools such as depositions, subpoenas, appraisals, business valuations, physical or mental examinations and requests for admission.
d. Failure to Make Discovery: The Court may penalize a party’s failure to make discovery by issuing sanctions, including attorney’s fees.
5. PRETRIAL CONFERENCE
a. Approximately 6 months after you serve your divorce complaint the court will schedule a Pretrial Conference hearing.
b. The Pre-Trial Conference (“PTC”) is a court appearance in which the parties present to the Court their respective positions and rationale on the remaining issues, which leads to a Court order that controls the subsequent course of action. At the PTC, the Court may respond on the issues, which may help to encourage settlement prior to trial.
6. FOUR-WAY MEETING and PRE-TRIAL MEMORANDUM
a. Four-Way Meeting: Prior to a Pre-Trial Conference, the parties must hold a four-way meeting among clients and their counsel in a good faith effort to resolve the issues.
b. Pre-Trial Memorandum: Prior to or at the Pre-Trial Conference the parties must file with the Court a Pre-Trial Memorandum that presents to the Court the status of, and the parties’ respective opinions on, the remaining substantive and administrative issues.
7. CONCILIATION, SETTLEMENT OR TRIAL
a. Conciliation: The Court may order the parties to engage in conciliation. If the parties make their own arrangements to conciliate their case, there will likely be a fee paid to the conciliator. The attorney chosen as conciliator will be an expert in divorce law and will have no personal interest in the outcome of the case. The conciliator meets with the parties and their counsel, attempts to help the parties resolve the issues and files a conciliation report with the Court. Typically, conciliations run for two or more hours, but can be shorter or longer. If the case does not settle through conciliation, it will continue towards trial.
b. Settlement: The parties, through counsel, may settle at any stage of litigation. To settle, both parties must agree on a resolution of the issues, put their agreement in writing in the form of a separation agreement (“Agreement”), and present the Agreement to the Court for approval at an uncontested hearing. The Court has discretion to approve or reject the Agreement. If the Court approves the Agreement, the Court will make standard inquiry of the parties at the uncontested hearing to verify that they have understood and agreed to the parties’ financial statuses and the terms of the Agreement, and if satisfied, the Court will make the Agreement binding upon the parties. If the Court rejects the Agreement, the parties may choose to modify it according to the Court’s rationale or go to trial.
c. Trial: Trial is an expensive but sometimes necessary method to achieve a resolution of the issues. Upon request, the Court issues trial dates that comport with the Court’s calendar. At trial, each party’s counsel presents to the Court the facts in his or her client’s favor, through examining witnesses, presenting exhibits and making opening and closing arguments to the Court. Ultimately, the Court will issue a Judgment that addresses the resolution of each issue before the Court, and this Judgment will be binding upon the parties.
d. 90-Day Waiting Period: The Judgment of Divorce, whether issued pursuant to an Agreement or a trial, becomes final/absolute 90 days after entry of the Judgment Nisi. This 90-day waiting period, called the “Nisi” period, serves the purpose of giving either party time to object to any part of the Judgment or to allow the parties to reconcile.
e. Special Waiting Period for § 1A Divorces: Most divorces are filed under M.G.L. § 1B. If you file for divorce under M.G.L. § 1A (where the parties agree about the issues from the beginning and file a Separation Agreement together with a Joint Petition for Divorce), the Court allows thirty (30) days to pass between its initial approval of the Separation Agreement and its entry of the Judgment of Divorce Nisi. At any time during that thirty (30) day waiting period, the Separation Agreement may be modified by agreement of the parties and with the approval of the Court, or by the Court upon petition of one of the parties, after a showing of a substantial change of circumstances. In that case, the Agreement, as modified continues as an order of the Court. After entry of Judgment of Divorce Nisi, the standard 90-day “Nisi” waiting period applies to give either party time to object to any part of the Judgment. Ninety (90) days after entry of the Judgment of Divorce Nisi, the divorce becomes final/absolute.
If you are considering a divorce, you should seek the advice of an experienced family attorney. Divorce matters can be complex and overwhelming. Contacting an experienced family attorney is always the best first step. Please contact our office to begin your process.