The family court in Massachusetts is the legal venue that has jurisdiction over family matters and is divided by county. The court operates by issuing case numbers and court dates for each matter to be resolved. Typical types of legal matters the family court resolves are; divorce, child support, alimony, paternity, parental rights, paternity, custody, visitation and adoption.
The purpose of filing for divorce is to legally terminate a matrimony.
Massachusetts divorce courts accept both no fault and fault grounds for divorce. A fault divorce requires a specific action that results in the breakdown of a marriage. A no fault divorce is a general irretrievable collapse of the union.
An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced with the filing of: (a) a petition signed by both joint petitioners or their attorneys; (b) a sworn affidavit that is either jointly or separately executed by the petitioners that an irretrievable breakdown of the marriage exists; and (c) a notarized separation agreement executed by the parties except as hereinafter set forth and no summons or answer shall be required.
Fault divorce grounds accepted in Massachusetts include: • Adultery • Impotency • Desertion for one year • Habitual drunkenness • Drug addiction • Cruel and abusive treatment • Refusing or neglecting to provide suitable support
The Commonwealth of Massachusetts does not recognize the term legal separation. As such, you do not have to get court permission to live apart from your spouse.
If the parties agree to a divorce then a written Separation Agreement will be created that outlines matters relating to how the marriage will be dissolved. The agreement details matters such as custody of children, parenting time or visits, child support, alimony, division of assets such as pensions) or the marital home. In addition the Separation Agreement will outline the payments of debts as well as the revision of the name you had prior to getting married. The Separation Agreement is good only if both spouses sign it and it typically is made part of the divorce judgment.
In order to file for a divorce in Massachusetts, residency requirements must be met for the court to accept the case. If the court determines that jurisdictional rights to adjudicate the case does not exist then the case will not be heard or it will be dismissed.
In order to satisfy the residency requirements in Massachusetts, one of the spouses must be a resident of the Commonwealth of Massachusetts if the grounds for divorce occurred in Massachusetts. However, if the grounds for divorce occurred outside the Commonwealth of Massachusetts then only one spouse must have been a resident of the state for at least 1 year.
Actions for divorce are filed, heard and determined in the probate court, held in the county where one of the parties lives. In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.
Alimony may be changed after a divorce through a process called a modification.
Alimony is the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order. Only people who are divorcing or are divorced can ask for and get alimony.
The court will decide if any of the following types of alimony will be awarded. The four different types of alimony are:
General Term Alimony
Support paid regularly to an ex-spouse who is financially dependent on the former spouse. The length of time general term alimony is paid depends in part on the length of the marriage.
Support paid regularly to an ex-spouse who is expected to be able to support themselves by a predicted time.
Support paid regularly or one-time after a marriage of not more than five years to make up for costs that the ex-spouse paid to help the paying spouse, such as such as enabling the spouse to complete an education or job training.
Support paid regularly or one-time after a marriage of not more than five years to help the spouse receiving the alimony to settle into a new lifestyle or location as a result of the divorce.
Either you or your spouse, or both, can ask for alimony at the time of divorce. Also, if the original divorce judgment did not mention alimony at all, you can file a complaint for alimony for the first time at any time after your divorce.
Massachusetts is an Equitable Distribution state
Since Massachusetts is an equitable distribution state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In determining the appropriate property distribution award, the courts shall consider the following: 1. length of the marriage; 2. the conduct of the parties during the marriage; 3. the age; 4. health; 5. station; 6. occupation; 7. amount and sources of income; 8. vocational skills; 9. employ ability; 10. Estate; 11. Liabilities and needs of each of the parties; 12. The opportunity of each for future acquisition of capital assets and income. (Massachusetts General Laws - Chapter 208 - Sections: 1A and 34)
Divorce modifications in Massachusetts may involve matters pertaining to • Child Custody • Child Support • Alimony • Visitation
In order to successfully obtain a modification you must prove that there has been a material change in circumstances since the order was issued. This might occur for numerous reason such as a party may lose a job and need a reduction of a support order or a custodial parent may remarry and wish to relocate to another state over the objections of the non-custodial parent. It would be required for an individual to obtain the court’s assistance in modifying the current judgment by filing a complaint for modification. On the other hand, the parties can file an agreement for modification if they both agree with the court for approval.
Child support is money paid by a parent to assist with the financial needs of a child when the parents no longer live together. The parent with whom the child lives most of the time is often referred to as the custodial parent. The other parent is often called the non-custodial parent.
Generally, the non-custodial parent pays child support to the custodial parent. In order to get a child support order, you must file a complaint (written request of what you are seeking) in court. Child support is based on the income of both parents. The court will use guidelines to determine the amount of child support to be paid.
There are 4 different types of custody that the court can award
Sole Legal Custody
Where one parent has 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.
Shared Legal Custody
Where both parents have a mutual role to make major decisions regarding the child's welfare, including matters of education, medical care, and emotional, moral and religious development.
Sole Physical Custody
Where the child resides and is under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court decides that such visitation would not be in the best interest of the child.
Shared Physical Custody
Where the child shares periods of time residing with and being under the supervision of both parents, and that physical custody is shared by the parents so that the child has frequent and continued contact with both parents.
In Massachusetts, the term for the visitation rights a non-custodial parent has with his or her child is known as Parenting Time. The document that spells out the details of parenting time is known as the Parenting Plan. This is a detailed document that details everything from when and where the child will be picked up and returned to who has the child during school vacations and holidays.
Even if the parents were never married the non-custodial parent can be granted visitation rights. Even if the custodial parent is opposed to the non-custodial parent visiting the child, the courts will rarely prohibit visitation completely. In special cases, the court may order supervision of the visits or other tight restrictions.
Courts in Massachusetts are opposed to the unlawful denial the non-custodial parent’s right to visitation with his or her child. In fact, the custodial parent could lose custody of the child, or the court can revoke the requirement for the non-custodial parent to pay child support.
Restraining Orders and Harassment Protection Orders
A restraining order, also known as a 209a protective order in Massachusetts, is a court order that is intended to provide victims of domestic, physical, or sexual abuse with legal protection by providing criminal and/or monetary penalties for a violation of the order. Restraining orders are obtained from the District Court, Probate and Family Court, Boston Municipal Court, or Superior Court.
The filing of an abuse prevention or restraining order in court is a civil procedure, however, the violation of the order is considered to be criminal in nature. As such, filing a restraining order against your spouse, former spouse, family member, boyfriend, girlfriend, or fiancée they will not go to jail unless they violate the order. Violation of a restraining order is considered to be a criminal offense and the violator could face up to 2 1/2 years of jail time, a fine of up to $5,000, or both, if convicted.
Harassment Protection Orders
A harassment protection order, also known as a 258e protective order in Massachusetts, is a court order that was created on February 9, 2010, the Massachusetts Legislature which allows victims of harassment the ability to obtain a harassment prevention order from the Boston Municipal Court, District Courts, Superior Courts, and Juvenile Courts (if both parties are under the age of 17).
Harassment under M.G.L. Ch. 258E is defined as "(i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse, or damage to property and that does in fact cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that by force, threat or duress causes another to involuntarily engage in sexual relations.
Under Chapter 258E, a Court can order a defendant to: "(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor; (ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor; (iii) remain away from the plaintiff's household or workplace, whether the defendant is an adult or minor; and (iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable legal fees.
Violation of a harassment protection order is considered to be a criminal offense and the violator could face up to 2 1/2 years of jail time, a fine of up to $5,000, or both, if convicted.
Obtaining a contempt order in Massachusetts involves filing a lawsuit against the other party for not fulfilling certain requirements of the Separation Agreement, stipulation or a court order. Typically this is due to the lack child support or alimony being paid by the other party or the other party not honoring the terms of the visitation agreement.
In the event that the other party has clearly violated a Massachusetts family court order, and they had the ability to comply with that order, a court may issue a contempt order that could result in:
• An order to make all payments that are past-due
• An order to pay the attorney fees for the party bringing the complaint, or;
• Jail time in some circumstances
Fathers and mothers have equal rights during the divorce process and with regard to child custody and visitation. It is our goal is to be sure that our clients are treated equally, regardless of gender. If you think that you were denied child custody due to an unfair ruling by the court or because the other parent is alienating your children, your rights should be defended. It is imperative that children have a strong bond with both parents. Fathers have a right to that bond and we believe it is important for children to have strong relationships with both parents. As such, we will advocate for your best interests and those of your children. For the exception of proven abuse, the court has determined that there is no excuse for not permitting visitation rights for fathers. In addition, the other parent denying visitation rights due to non-payment of child support is a violation of a court order and is not permitted.
Grandparents have the option to petition with the Probate and Family Court in the county in where the divorce or separate support complaint was filed. the probate and family court for visitation rights with their unmarried minor grandchildren if: (1) the parents are divorced, married but living apart, or under a temporary order or judgment of separate support; or (2) one or both parents are deceased; or (3) if the child was born out of wedlock, the parents do not reside together and the paternity of the child has been established by a court or by a signed acknowledgment. The Grandparent(s) have the burden to show the court that by allowing visitation, it would be in the best interest of the child.
Paternity & Unwed Parents
Paternity is the relationship between a child and his or her biological father
There are two ways paternity is established in Massachusetts
The first way is through a voluntary acknowledgment process where a legal form signed by both the Mother and Father acknowledging the child’s paternity. The form must be notarized and each party is informed of the right to seek genetic marker testing this is also known as DNA testing. Paternity acknowledgements are typically completed at the hospital when the child’s birth certificate is being completed. Sometimes they are completed by the City clerk in the town or city hall where the child will reside.
The second way paternity is established is through a court process. In this case, the Mother or the man believing to be the Father files a Complaint to Establish Paternity. The court will most likely order the parties and the child to submit to genetic marker testing so that the Judge can issue a court order which formally establishes the Child’s paternity. If necessary, the child’s birth certificate can be amended to add the Father’s name. The court order could institute a child support order, including a parenting plan for visitation, child support, or provision for the child’s medical insurance.
Mediation is an informal and non-adversarial meeting between the parties where an impartial mediator hears the relevant facts of the dispute between the parties and helps the parties reach their own decision to resolve the issue.
Mediation allows both parties to reach a fair settlement with a neutral third party. Parties in the mediation have the ability to make joint decisions involving finances, custody issues and property issues as opposed to relying on a judgement from the issuance of an order regarding their own lives and those of their children.
It also permits the parties to control the time-frame and can even save money as a traditional divorce can be time consuming and costly. Mediation can offer a win/win solution as opposed to the traditional divorce process which can be a win/lose solution due to the increasing levels of stress, time, and costs associated with traditional divorce.
Mediators are trained and experienced in assisting parties to reach their own negotiated dispute resolution.
A prenuptial agreement, known as premarital or ante-nuptial agreement, is a contract between two parties prior to marriage that specifies how property, debt, and assets are to be divided in the event of divorce, death, or separation. Prenuptial agreements can be as simple or as broad as the parties wish and is dependent upon the financial situation of the parties and whether or not the couple has children. In order for prenuptial agreements to be enforceable in Massachusetts, each party must provide full financial disclosure to the other party and both parties have representation of an attorney. The provisions in the agreement must be consistent with Massachusetts laws, and the agreement must be fair at the time of drafting and at the time of divorce.