Divorce in Massachusetts is legally referred to as Divorce from the Bond of Matrimony or Dissolution.
Massachusetts courts issue intermittent judgments of divorce nisi. In law, nisi means "to take effect unless"; a divorce decree nisi means the divorce will now go ahead unless something happens to stop it. A decree absolute comes later (usually after 90 days) and means that the divorce is then final.
To obtain a divorce in Massachusetts the parties must have formerly lived together as husband and wife in the state at some time. Generally, a divorce may not obtained for a cause which occurred in another jurisdiction, unless before the cause occurred the parties had lived together as husband and wife in Massachusetts and one of the parties lived in the state at the time when the cause occurred.
However, if the Plaintiff (filing party) has formerly lived in the state for one year and the cause occurred in the state; or if the Plaintiff lives within the state at the time of filing and the cause occurred in the state, a divorce may be granted for any cause allowed by law, unless it appears that the Plaintiff only relocated to Massachusetts in order to obtain a divorce.
An action for divorce shall be filed, heard and determined in the probate court in the county where either party lives, or if either party still resides in the county where the parties last lived together, then the action must be filed in that county.
In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer the action for hearing to a court in a county where that party lives.
Filing for Joint no-fault Dissolution:
An action for divorce on the ground of an irretrievable breakdown of the marriage may be started by filing the following:
No Summons or Answer shall be required. After a hearing on a separation agreement, within 30 days, the court will make a finding on whether the marriage is irretrievably broken, and whether agreement has made proper provisions for custody, support and maintenance, alimony and the disposition of marital property. If the findings are in the affirmative, the court will approve the agreement and after 30 days shall enter a judgment of divorce nisi without further action by the parties.
If the court does not approve the agreement as executed, or as modified by agreement of the parties, the agreement will become null and void and of no further effect between the parties; and the action for divorce will be dismissed without prejudice.
Filing for Non-Joint no-fault Dissolution:
An action for divorce on the ground of an irretrievable breakdown of the marriage may also be started by filing the Complaint without a signed statement and separation agreement of the parties. At least six months after filing the Complaint, there will be a hearing and the court may enter a judgment of divorce nisi if the court finds that there has existed for the period following the filing of the Complaint and up to the date of the hearing, a continuing breakdown of the marriage.
As part of the entry of the judgment of divorce nisi, appropriate orders shall be made by the court with respect to custody, support and maintenance of children, and in accordance with statutory provisions for alimony and the disposition of marital property.
The court granting a divorce may allow a woman to resume her maiden name or that of a former husband.
The following are statutory grounds for divorce from the bond of matrimony:
An annulment voids a marriage, treating it as if it never occurred. If a party was not legally able to enter into a marriage in the first place, the marriage will be void from the beginning. If there is another reason why the marriage may not be recognized, such as fraud, the marriage is voidable.
No person may marry his/her:
These prohibitions stand whether or not the marriage which created the familial relationship has been terminated by divorce or death.
A marriage solemnized within the state which is prohibited by reason of blood relation or affinity through marriage between the parties, or bigamy, shall be void without a judgment of divorce or other legal process, with the following exception.
A marriage contracted while either party has a former living wife or husband is void unless the following is true:
If these criteria are fulfilled, the couple shall be held to have been legally married from and after the removal of the impediment.
The following situations may render a marriage voidable:
If the validity of a marriage is doubted, either party may institute an action for annulment of the marriage, or if it is denied or doubted by either party, the other party may institute an action to affirm the marriage. These actions may be initiated in the same manner as an action for divorce, and all the relevant and applicable statutes regarding actions for divorce shall apply to these actions for annulment or affirmance.
Same-sex marriage is legal in Massachusetts. The same laws and procedures which govern heterosexual marriages also apply to same-sex marriages. There are no specific or special procedures for same-sex marriage.
Massachusetts is an equitable distribution state. Whent the parties are unable to come to an agreement regarding property division, the court will make a determination. It will first classify which property and debt is considered marital. Next, it will assign a monetary value on the marital property and debt. Finally, it will apportion the marital property between the two spouses in an equitable and fair manner.
Any real and personal property owned prior to the marriage will generally be considered the separate property of that spouse.
Upon the filing of an action for divorce by either spouse, the real and personal property of the other spouse may be attached to secure suitable support and maintenance to the receiving spouse and to any children that may be committed to his/her care and custody.
Upon divorce or upon a complaint in any action brought at any time after a divorce, a court with jurisdiction over both parties may make a judgment for either of the parties to pay alimony to the other. In addition to, or in place of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including all vested and non-vested benefits, rights and funds accrued during the marriage and which shall include retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance.
In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of any property to be assigned, the court, after hearing any witnesses of each party, shall consider the following factors:
When the court makes an order for alimony, it will also determine if the paying spouse has health insurance or other health coverage available to him through an employer or organization, or at a reasonable cost that may be extended to cover the receiving spouse. If so, the court will include a requirement in the alimony order that the paying spouse do one of the following: exercise the option of additional coverage for the receiving spouse; obtain coverage for the receiving spouse; or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the paying spouse's cost for health insurance coverage for his/her spouse.
Upon a judgment for divorce, the court may make a determination regarding the care, custody and maintenance of the minor children of the parties and may determine which of the parents the children, or any of them, shall remain, or may award their custody to some third person, if it seems expedient or for the benefit of the children.
In making an order regarding child custody, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.
There shall be no presumption either in favor or against shared legal or physical custody at the time of the trial on the merits. At the trial on the merits, it the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually shall submit to the court a shared custody implementation plan setting forth the details of shared custody including the following:
At the trial, the court may issue a shared legal and physical custody order, and in conjunction with, may accept the plan submitted by either or both parties, or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent.
The following custody arrangements may be awarded by a court:
If the parents have reached an agreement providing for the custody of the children, it may enter an order in accordance with the agreement, unless specific findings are made by the court indicating that such an order would not be in the best interest of the children.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless the child is of suitable age to signify his/her assent to such order, and also provided that until such order is issued, no person shall visit, with the child present, that parent without the consent of the child's custodian or legal guardian.
Massachusetts uses the Income Shares Method to calculate child support obligations. It is based on the paying parent's gross income and the number of children for whom support will be ordered. Acceptable deductions include child care costs, health insurance costs, dental/vision insurance costs, and support obligations paid for other children.
In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines established by the chief justice for administration and management. The court will only deviate from the guidelines if it finds that the amount of the order that would result from application of the guidelines would be unjust and inappropriate under the circumstances, and that the deviation is consistent with the best interests of the child.
The court may make appropriate orders of maintenance, support and education of any child who has attained age 18, but who has not attained age 21 and who lives in the home of a parent, and is principally dependent upon that parent for maintenance.
The court shall also make appropriate orders of maintenance, support and education for any child who has attained age 21 but who has not attained age 23, if the child lives in the home of a parent, and is principally dependent upon that parent for maintenance due to the enrollment of that child in an educational program, excluding educational costs beyond an undergraduate degree.
In Massachusetts, if a couple chooses to live apart but remain married, they may seek a Separate Support Order, which can address the same issues as divorce, such as custody, visitation, child support, alimony and division of property.
If, after a hearing, the allegations of an action for divorce are not proven and the facts warrant, the court may enter a judgment denying the divorce, but making a finding that the Plaintiff is living apart from the Defendant for justifiable cause, and may make an order regarding the support of either spouse and the care, custody of and maintenance of the minor children of the parties, as applicable.
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