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Category Archives: Divorce

Uncontested Divorce

To file for a true uncontested divorce, you must be in agreement with everything.  That means that you have to agree on child custody, child support, alimony, property division, and the grounds for divorce.  If you can agree on all of those, you can file for an uncontested divorce, and you may not even need a lawyer to do so.  This article will walk you through what is needed to file for an uncontested divorce in Massachusetts.

In order to file for divorce, you will need to prepare a Joint Petition for Divorce, an Affidavit of Irretrievable Breakdown, a R-408 Vital Statistics Form, a Hearing Assignment form, Child Support/Care affidavits, a Separation Agreement, and complete a mandatory Parental Education Program.  You can obtain a packet of forms from the Probate and Family Court in your jurisdiction.  After you complete these requirements, you can file those documents with the same court.

As you can see, there is a lot of prep-work that goes into filing for a divorce.  Not only is it a lot of work, you have to prepare everything with the one person you are trying to get away from.  The good news is, however, most of the documents only need to be filled out.  The only document that has to be crafted by the divorcing couple is the Separation Agreement. This document sets forth how the property will be divided, how the debts will be apportioned, how child care will be arranged, how alimony (if any) will be paid, and how taxes will be filed.  This is a very complex document and is usually best to have an attorney draft it, but it is not impossible to do by yourself.

If you can complete all of the aforementioned, you can file all the paperwork and schedule a hearing.  If everything is in good order, the court will send a Notice of Trial to both spouses.

At the hearing, the judge will ask you a series of questions to make sure you have read, understood, and agreed to all the terms in the Separation Agreement.  If he determines that there has been an Irretrievable Breakdown of the marriage and everything was agreed upon in the Separation Agreement, the judge will order the Divorce.  After the judge orders the divorce, the court will grand a Judgment of Divorce Nisi.  This means that there is a 120 days waiting period before the judgment becomes final.  During this time, you cannot remarry and you are still considered married until the expiration of the 120 days.

Reasons for Having a Prenuptial Agreement

Today more and more people are considering prenuptial agreements.  It is no longer the rich and famous who are considering that they should have their significant other sign a prenuptial agreement.  This blog will discuss some reasons for considering a prenuptial agreement.

To start, contemplating whether to create a prenuptial agreement does not mean that your marriage is destined to fail from the beginning.  A prenuptial agreement might actually be a good thing for the marriage.  Creating a prenuptial agreement makes both parties stop and throughly examine their financial affairs. It makes both parties look at what they have in current assets, future assets, and how those assets would be distributed in the even that the marriage ended.  Most people do not find it comfortable to talk about finances with their future spouse, especially if there is a significant difference between the two.  By creating a prenuptial agreement, both are required to fully disclose all their assets.  This up front, in-your-face presentation is probably the only time that either party would be willing to be so forward with their finances.

Some Reasons for Creating a Prenuptial Agreement:

  1. Do you own real estate?
  2. Do you have over $50,000 worth of assets, other than real estate?
  3. Do you currently earn a salary greater than $100,000.
  4. Do you have valuable employment benefits, such as profit sharing plans, stock options, or any other type of vested interest?
  5. Do you have or are you pursuing an advanced degree?
  6. Do you own your own business?

These are some of the basic questions to ask when considering whether to execute a prenuptial agreement.  This list is not exhaustive, but if you can answer yes to any of those questions, you have a good reason for considering a prenuptial agreement.

If you decide that a prenuptial agreement is appropriate for you, you have to start talking to your future spouse about signing one.  If they also think that it would be appropriate, you both should seek separate legal assistance.  Having independent legal assistance is important.  Although, having only one lawyer represent both parties does not mean that the prenuptial agreement would automatically invalid.  It would, however, subject the prenuptial agreement to harsher scrutiny in the event of divorce.  Separate, independent legal assistance is 100% necessary in my opinion.  Independent counsel will do what is in their client’s best interest.  They will also work better with the other party and their attorney to develop a prenuptial agreement that is valid and enforceable.

Child Custody in Massachusetts

A child custody dispute is likely the most contentious battle that any family will face.  Not only are they contentious, they also bring out the worst in people.  That is why, frankly, it is an area where layers and judges detest.

With that said, it is important to understand the preference of custody in Massachusetts.  The preferred form of custody in Massachusetts is known as “Joint Legal Custody.”  Not only is it preferred here in Massachusetts, it is the predominate preference throughout the United States. This means that each parent must consult with each other about major issues involving their children.  It does not mean that there is an equal 50/50 split of time spent with each parent.  This type of arrangement preserves the non-custodial parent’s rights and responsibilities with respect to the children. In theory, this keeps the parents more involved in the development of their children.  In addition, this form of custody is typically worked out between the parents, with schedules developed by them.

Sole Custody is also an option, provided that there is an overwhelming showing that it would be in the child’s best interest.  The court will grant this form of custody, and limit the visitation, but it is not common.  This is why custody arrangements must be made in the best interest of the children, and parents must use goodwill and cooperation throughout the process.

Ultimately, the court grants custody based on the “best interests” of the child. This is why custody arrangements are always modifiable.  A modification requires that there be a change in circumstances and that a modification be in the “best interests” of the child.

This blog has been brief, at best.  It is important to understand that this is an area that deserves an amount of attention and understanding that goes beyond the purpose of these blogs.  These arrangements have to be in the best interest of the children and parents cannot let their personal vendettas affect their custody arrangements.