The divorce process if full of legal jargon and many divorce terms can lead to confusion during an already challenging time. Here, we give a general overview of common divorce terms to help provide some clarity. These divorce terms are broken down into three major categories: children, finances and property, and legal procedure.
Common Divorce Terms: Children
There are two forms of custody in Massachusetts: physical custody and legal custody. First, legal custody refers to a party’s ability to make important decisions about the child of the spouses. Such decisions can involve matters like education, religion, and medical care. Second, there is physical custody. Physical custody has to do with where the child lives (i.e. which spouse’s home).
When parties divorce, the court needs to determine which parent will maintain each type of custody. The court can do a number of things when it comes to custody. The court can order that the parties share each type of custody, or award sole custody to one parent. Additionally, the court is able to make determinations about each type of custody separately.
So, one scenario may involve both spouses equally sharing legal and physical custody. This means, first, that the child will spend an equal amount of time living with each spouse. This also means that the spouses must make important decisions about the child together. On the other hand, in another scenario, the court may order that one spouse will maintain sole legal and sole physical custody. Accordingly, the child will live primarily with one parent and that same parent will make all important decisions on behalf of the child. It is also possible for the court to order that the spouses share legal custody, but that one spouse maintain physical custody. Or, that the spouses share physical custody, but one spouse have sole legal custody.
Parenting time refers to the time a child spends with the parent with whom she or he does not primarily live. Sometimes, people refer to parenting time as “visitation” — in fact, that is what the courts called parenting time in the past. However, the word “visitation” now applies specifically to supervised visitation and grandparent visitation.
Child support is money one parent pays to the other parent — the recipient — to help financially support the children of the marriage in the recipient’s home. Financial expenses that child support may cover include medical/dental expenses, educational expenses, and other living expenses. The court orders child support and generally sets the child support amount in accordance with the Child Support Guidelines (although the court may deviate from the Guidelines in some cases).
Child Support Guidelines
In Massachusetts, the court will apply the Child Support Guidelines to a child support order or judgment. The Guidelines include a worksheet which the court uses to determine the child support amount. There is a rebuttable presumption that the Guidelines and child support amount are appropriate in every child support case. This means that the court will generally assume that the amount resulting from the worksheet should be the child support amount the court orders. Under limited circumstances, the court may deviate from the Guidelines amount. However, the court is unlikely to do so. It is most likely that the court will base the child support order on the amount reflected in the Guidelines worksheet.
The Child Support Guidelines are based on various factors, including the income of the spouses. Every four years, the trial court convenes a Child Support Guidelines Taskforce to review the Guidelines and recommend any changes.
Common Divorce Terms: Finances & Property
Marital Assets vs. Separate Property
Marital assets/property include all items, interests, and possessions the couple attained during their marriage. This also includes debt the spouses acquire, and can even include things like the family pet. Property that either party owned prior to the marriage is known as separate property. The court typically also considers property a party inherits as separate property.
Division of Marital Assets
The division of marital assets refers to how the court divides the spouse’s marital assets/property.
Massachusetts is an equitable distribution state when it comes to the division of property in a divorce. This means that, during a divorce, the court will divide the assets of the parties fairly. It is important to note that “fairly” does not necessarily mean “equally.” Further, the assets that the court can divide include marital property, as well as separate property if the court decides that is fair.
When determining what is equitable in the division of marital property, the court will consider certain factors. Regarding debt, known as a “negative” asset, the court will also consider these factors. These factors include: length of the marriage; conduct of the parties during the marriage; age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of the parties; opportunity of each for future acquisition of capital assets and income; amount and duration of alimony; the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates; and, the contribution of each of the parties as a homemaker.
Automatic Restraining Order
In every Massachusetts divorce case, an automatic restraining order applies. The automatic restraining order prevents either spouse from selling, transferring, concealing, spending, encumbering, or otherwise disposing of any property belonging to either party. The automatic restraining order is subject to a few exceptions, however. For example, a spouse can use such property to pay for reasonable living expenses. The automatic restraining order applies to the plaintiff-spouse when she or he, or his/her attorney, files the divorce complaint. Meanwhile, it applies to the defendant-spouse upon the completion of service of the divorce summons and complaint.
Alimony, also known as spousal support, is money the court orders one spouse to pay to the other spouse. It is meant to help support the recipient spouse. A court may make an alimony order during the pendency of a divorce case and/or upon the divorce.
There are different types of alimony with different requirements. Under Massachusetts law, an alimony order is generally based on certain factors. Among others, such factors include the length of the marriage, the age of the spouses, the spouses’ health, and the spouses’ ability to earn. A judge is able to deviate from the alimony rules in certain cases.
Qualified Domestic Relations Order
Known as a QDRO (pronounced “quadro”), a Qualified Domestic Relations Order is an order that governs the division of a retirement plan that is subject to the Employee Retirement Income Security Act. In a divorce case, the judge can make such an order, which enables a party to receive a portion of his or her former spouse’s retirement (i.e., pension or 401K).
Common Divorce Terms: Procedure
The following divorce terms can be a little more confusing than those divorce terms above. You will see that many of the divorce terms below reference each other, so be sure to read each section closely.
Irretrievable Breakdown of the Marriage
An irretrievable breakdown of the marriage means that both spouses agree that their marriage is broken, but it is not because either of them is solely at fault. Essentially, the marriage just did not work out.
In Massachusetts, a spouse can seek a “no-fault” divorce or a “fault” divorce. If the spouse is filing for divorce based on an irretrievable breakdown of the marriage, she can file for a “no-fault” divorce. Compared to a “fault” divorce, a “no-fault” divorce tends to be easier.
A “no-fault” divorce can be contested or uncontested. An uncontested no-fault divorce is known as a “1A” divorce. In a 1A divorce, the spouses not only agree that the marriage is irretrievably broken, but they have also reached a written agreement about things like property division, health and life insurance, child custody and support, and alimony.
Conversely, in a contested no-fault divorce, the parties agree that the marriage is irretrievably broken. However, they do not agree about some or all of the above issues. A contested no-fault divorce is known as a “1B” divorce.
On the other hand, if one spouse is blaming the other for the breakdown of the marriage, s/he may file for a fault divorce. Under Massachusetts law, there are seven reasons why someone can file for a fault divorce. Those reasons are: adultery; desertion; gross and confirmed habits of intoxication; cruel and abusive treatment; non-support; impotency; and, prison sentence of 5 or more years. The spouse filing for a fault divorce must prove the “fault” reason why he or she is filing for divorce. Accordingly, “fault” divorces can take more time and be more expensive than “no-fault” divorces.
Joint Petition for Divorce
If both spouses want to file for divorce because of an irretrievable breakdown of their marriage (a “no-fault” divorce) and they have completed a separation agreement, then they can file a Joint Petition for Divorce. Again, this is a “1A” divorce. A Joint Petition for Divorce requires more paperwork upfront. However, the process for a 1A divorce tends to be easier for the spouses.
Complaint for Divorce
A complaint is the first form one files with the court to start a civil case. The complaint tells the court the reasons why the person starting the case, known as the plaintiff, is filing the case in the first place. If only one spouse is filing for divorce, then that spouse would file a complaint for divorce. This is a “1B” divorce.
When the plaintiff-spouse serves a complaint for divorce (a “1B” divorce) on the other spouse, the defendant, the defendant-spouse can file an answer. The answer is the defendant-spouse’s response to the divorce complaint. In the answer, the defendant-spouse tells the court what she or he wants. For example, the defendant-spouse can ask the court for alimony, child support, etc. The defendant-spouse can even tell the court he or she does not want to get a divorce; although, the court will very likely grant the divorce so long as one spouse wants it.
Discovery refers to the process of gathering and disclosing evidence for a case. There are many discovery tools a spouse can use to collect evidence. Those tools include, but are not limited to, depositions, requests production of documents, and interrogatories. The Massachusetts Rules of Civil Procedure govern the discovery process.
A separation agreement is a written agreement that describes what will happen once the court grants the divorce. Some issues the separation agreement may cover include property division, health and life insurance, child custody and child support, and alimony. The court must approve the separation agreement for it to be binding on the spouses. To file for a 1A divorce, the parties must submit a separation agreement along with their Joint Petition for Divorce and other filings.
Before a divorce case ends, the spouses may need the court to make decisions about important matters on a temporary basis, while the case goes through the legal process. For example, the court may need to make decisions about child support or child custody, or even alimony. In such a situation, the judge can issue a temporary order, dictating what the spouses must do until the court resolves the case. Temporary orders remain in effect until the court makes another, superseding temporary order, or until the court issues a judgment in the case.
A judgment is the judge’s final decision in the case, which the spouses will most likely receive in writing.
Judgment of Divorce Nisi vs. Absolute
A Judgment of Divorce Nisi is a divorce judgment that is not yet final. The Judgment of Divorce Nisi comes before the final divorce judgment, known as the Judgment of Divorce Absolute. The length of time between the Judgment of Divorce Nisi and the Judgment of Divorce Absolute is known as the “Nisi period.” During the Nisi period, a spouse can challenge the divorce. For example, a spouse can assert that the other spouse failed to make certain disclosures, which impacted property division.
How long is the Nisi period? This question is a little more complicated than the response to follow, so you should discuss possible scenarios with an attorney. That being said, if the case started with a Complaint for Divorce, and if at least six months have passed since the filing of the Complaint, the Nisi period is 90 days from the date of the Judgment of Divorce Nisi. If the divorce case started with a Joint Petition for Divorce, essentially, the Nisi period is 120 days from the date of the final divorce hearing. Again, this is a high-level description and an attorney can help explain the Nisi period further.
After the Nisi period expires, the divorce becomes final automatically as long as one of the spouses did not challenge it. Once the divorce is final, the former spouses can remarry.
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