Uncontested Divorce: The Process in Massachusetts

In some cases, an uncontested divorce may be the most cost-effective and efficient option.

Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?

In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.

The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.

Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.

Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.

Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Merger Versus Survival of Separation Agreements

Experienced family lawyers guide spouses in emotionally fraught divorce proceedings toward a resolution that terminates the marriage. A separation agreement is a crucial part of that process.

A separation agreement memorializes the terms of that resolution and articulates clearly the parties’ mutual rights and obligations. The separation agreement may either be incorporated or “merged” into the judgment of divorce granted by the Probate Court or may “survive” as an independent contract. It is crucial that the parties understand the difference between merger and survival, and that the separation agreement submitted to the probate judge be carefully written to reflect the parties’ goals.

Regarding a merger: A separation agreement whose terms, by stipulation, merge into the judgment nisi of divorce entered by the Probate Court lacks independent significance. Such an agreement is subject to a party’s motion for modification of support, or an order of contempt for noncompliance from the probate judge. Because the Probate Court is empowered to revise its own judgment in this case, modification and contempt are possible.

Let’s contrast a separation agreement whose terms explicitly articulate the parties’ intent that the provisions merge into the judgment of divorce, but that the agreement stand alone as a contract with independent legal significance. In this case, modification and contempt are not as readily reached by the Court. In fact, a party seeking to modify a surviving separation agreement must demonstrate “something more” than a material change of circumstances warrants a revision. A surviving agreement may be enforced either in Probate Court or in a civil proceeding in Superior Court, as with any other breach of contract action.

For the separation agreement to survive a judgment of divorce, the Probate Court must find that it is fair and reasonable; that it is not fraudulent or the product of coercion; and that the parties agreed on its finality. If that bar is met, the parties’ provisions for dividing the marital property will not be subject to further division by the Probate Court, absent “countervailing equities.” An example of that, allowing for judicial revision, would be one of the former spouses being in danger of becoming a public charge.

A separation agreement can be drafted in such a manner that some of its terms survive the judgment of divorce, whereas other aspects merge into the judgment. If the separation agreement is vague regarding the question of its survival, generally, such agreements are held to survive the subsequent divorce judgment that incorporate its terms. Examining the terms of the agreement in its entirety, the parties’ intent is the decisive factor, rather than the court’s predilection. Inartful drafting of the agreement that contains the word “merged” does not in of itself mean the parties wanted the judgment of divorce to absorb the agreement, if contrary indications of intent are expressed or implied elsewhere in the agreement that the parties meant for the agreement to survive.

Child-related matters, such as visitation, custody and child support, remain subject to modification and contempt orders by the Probate Court, as the former spouses cannot bargain away their children’s right to support from either of the parents.

If you have any questions about divorce or family law issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

What Provisions Should be Included in a Separation Agreement?

For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?

Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]

These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.

Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.

After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.

Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]

If you are seeking answers to your questions about separation agreements or general family issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Mass Gen. Laws ch. 208 § 1A

[3] Id,

[4] Id.

[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)

[6] Id.