A Primer on Divorce in the Commonwealth of Massachusetts
A. INTRODUCTION
A marriage is two things at the same time. On the one hand, a marriage is “among life's momentous acts of self-definition.” In that respect, it is a bond between people that the law cannot change, but can only acknowledge. On the other hand, the way that the law acknowledges that bond is by imposing contractual and fiduciary duties on each spouse. In its legal respects, then, a marriage is a partnership, and a divorce is the dissolution of that partnership.
When a partnership dissolves the assets and liabilities must be divided between its members. That is what a legal action for divorce can do. An action for divorce is not designed to provide solace or vindication, and is not (or, at least, is no longer) principally a forum in which to litigate the conduct of the parties to the marriage. Instead, the question a court has to answer in a divorce is, how should the property, benefits, and obligations which were a part of the marriage, be divided between the parties.
There is no simple answer to this question, but courts have worked out some concepts that they employ when trying to answer that question. You should try to familiarize yourself with some of the more important concepts, which are listed below.
B. IMPORTANT CONCEPTS
1. Types of Custody
In cases where there are minor or dependent children of the marriage, the most important decision a court in a divorce action will make is how those children will be cared for, and how the divorce will impact the parental rights of the children's parents.
Legal vs. Physical
In every custody matter there are two issues: physical custody and legal custody. The person(s) with physical custody almost always also have legal custody, but that is not necessarily the case. Consider the following definitions:
Legal Custody: the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development
Physical Custody: a child shall reside with and be under the supervision of the person(s) with whom physical custody resides.
Joint Custody vs. Sole Custody
Both legal and physical custody can be shared between parents (joining), which is the norm during a marriage, or they can reside with one parent to the exclusion of the other (sole). That means that if one parent has sole legal custody, that parent has the right to make important decisions regarding the child's future. While the other parent might have something to say, the final decision rests with the parent who has sole legal custody. There are caveats, though. For example, if a court orders “sole physical” custody to one parent or the other, the parent without physical custody still has a right to reasonable visitation.
Presumptions
A “presumption” is the decision that a court is directed to make unless one of the parties persuades it to do something else. There is a “presumption” that divorcing parents will share “joint legal custody,” which means that unless one side persuades the court that the best interests of the child would be better served by giving one parent sole legal custody, the court will default to ordering joint legal custody. However, there is no presumption that divorcing parents share physical custody of the child. That means that in every divorce case where a child is involved, it is important to prepare early to argue to a court that you should retain custodial rights in your child.
2. Best Interests of the Child
When deciding questions about how custody should be awarded, the court is legally required to make its decision based on “the best interests of the child.” That means that the court will consider what it thinks will be best for the child without regard to what will be best for the parents.
3. Marital Property
“Marital property” is the property that the court eventually has to decide how to divide up. Before considering how that division occurs, you should know what property is “on the table.” The short answer is that almost anything of value that you can imagine is probably part of the marital property. Marital property covers everything from the house and the car, the sofa and television, the dog and the cat, to the pensions and insurance benefits of each spouse.
4. Equitable Share
Most of the time, the division of marital property is accomplished with an agreement by the parties, but where there is no agreement, the court will attempt to give each person an “equitable share.” “Equitable” is another word for “fair,” but it means a particular kind of fairness. If one team wins a sports game, the win is “fair” so long as everyone played by the rules. But the “fairness” meant by the word “equitable” is not just about whether everyone played by the rules, it's also about looking out for the interests of the teams going forward.
In the context of a divorce, what this means is that, although the court will be aware that one party might have come into the marriage with more property or wealth, when it comes time to divide up the “marital property” it will also consider the way in which each person contributed to creating a family, a home, and a marriage, and will try to provide for the needs of both parties as much as possible.
C. PREPARATION
Over the course of any divorce matter you will often have to resort to consulting various records. When it becomes necessary to rely on records, please provide me with copies of any records or documents you consult. At the very least, you will need to have the following documents:
Certified Marriage Certificate. You can get this from the city hall where you registered your marriage.
Tax returns for last 2 years for both you and your spouse (if you filed separately). You will save yourself a lot of time and money if you can find these documents on your own, but if you cannot, please tell me immediately.
- Your most recent Social Security statement
1099s and W-2s for the last tax year
- Certified copies of birth certificates for any children. The hospital where the birth occurred usually maintains such certificates.
D. INFORMATION FOR YOU
1. Parent Education Class
If there are any minor children involved in the marriage you and your spouse will both (separately) be required (with few exceptions) to attend a class on the effects of divorce on children. The sooner you arrange to take this class the sooner your case can proceed. Please refer to Attachment A for a list of certified classes. The program typically consists of two sessions of two and a half hours each and cost $80 per person.
You must attend this class within 60 days of filing for divorce. If you do not, the court can impose “sanctions” (ie. hurt your case) and your case cannot move forward until you attend the class.
2. Mediation
One alternative to a divorce action that is available to you is mediation. What that means is that there would be one person who, like a judge, would hear evidence and make decisions about what would happen in the case. The difference is that the mediator would collect his or her own evidence and would try to help you reach an agreement with your spouse, instead of each spouse trying to persuade a judge to decide in his or her favor. If you think you might want to consider mediation, please let me know and I can provide you with more information.
3. Diary
You should consider keeping a diary of any significant events, or thoughts that occur to you, with regard to the dissolution of your marriage. There is so much information that is relevant to a divorce action that it is hard to keep it all under control, even for someone who has been living in the midst of that information their entire lives. It is even more difficult for your attorney. A diary will help organize your thoughts and concerns, and will help your attorney better assist you pursue your goals.
E. DATA GATHERING
For a court to do its job in a divorce case, it must have a clear picture of the lives and assets of all the people involved. What this means is that a court is going to pick over every piece of your life and both sides will attempt to interpret it to their own advantage. As your attorney, it is my job to highlight the things that weigh in your favor, in the hopes of persuading the court to resolve the case in a manner as favorable to you as possible. Counsel for the opposing side has the same obligation to your spouse. Accordingly, I will need to know as much about you as I can; the good and the bad together. Everyone's life is complicated in its own respects, and I will not be able to learn everything I need to know in one meeting alone.
In order to save you both time and money, I will ask you to compile much of the information I need yourself. Please review the topics discussed below. Take some time to think about them and ask me any questions you may have. Then, when you are ready, sit down and write out a description of each item described below. Please order your answers according to the titles
1. Equitable Division Factors
The general concept of the division of assets in divorce is that the entire estate and all the assets of each spouse is subject to division by the court, and the court decides how to make that division based on certain “factors.” The “factors” on which the judge makes his or her decision are listed below. Please take some time and write out for me how you think each factor applies to your case. If one of these factors reminds you of something else you think I should know, go ahead and write it down. Remember, no one else is going to see your answers, so be as detailed and candid as possible:
Factors:
- 1. The length of the marriage.
- 2. The conduct of the parties during the marriage.
- NOTE: In acrimonious divorces it is common for the parties to spend too much time worrying about this factor. If there is something relevant to the conduct of the parties factor, make sure that I know it, but try not to make this the most important part of your answer.
- 3. Age of the parties (as it relates to employment, vocation skills, and the opportunity to earn income and acquire assets in the future).
- 4. Health of the parties (as it relates to economic needs, ability to find and maintain employment, etc).
- 5. Lifestyle of the parties.
- 6-9. Occupations, incomes, and potential future sources of income or occupation.
- 10. The estate/property of each party and the role that each party played in paying for it, maintaining it, improving it and paying any debt incurred because of it.
- 11. Contribution of each person to the creation of a home and family unit.
2. Financial Disclosure
One of the most important documents filed in a divorce case is the financial disclosure file. This is a comprehensive list of your assets. This document must be filed within 45 days of filing the divorce. What makes it of particular importance is that it must be updated regularly. If there are assets which are not promptly disclosed on that form, that oversight can be used against you.
This document cannot be filled out hastily. Please read it over, and note where there are questions which you may have difficulty answering. Let me know which questions will be hard for you to answer so that I can properly prepare.
3. Assets and liabilities
In order to discuss an equitable dissolution of the marriage, I must know about all the property, assets, and liabilities that a court might award to one person or another, or split between the parties. To the extent that you know about assets or liabilities of your spouse, please list those and indicate for me that they are owned or held by your spouse.
4. Narrative History of the Marriage
Particularly where children are involved it is important that I know the history of the marriage and the parties involved. Think of this as a short autobiography of your marriage.
5. Income and Expenditures
The court may make an effort to maintain the lifestyle of each party by directing some income or expenditures of one party to the other. List the source of all income and the weekly amount. Where you do not have exact figures, provide estimates, but make it clear where a number is an estimate rather than an exact calculation. Also list any regular expenditures, including bills, regular expenses like groceries, daycare fees, etc.
6. Family
Where children are involved, the court will make its decision as to custody based on what it believes are the “best interests of the child.” Where there are no children involved, it is still important that I know what kind of family support you and your spouse may have. Please tell me about your family, any children that you care for, and what you think would be in the best interests of those children.