Answers to common divorce questions

Our own Attorney Nicole Norkevicius has developed the questions and answers below to help dispel some misconceptions and provide insight into the most common concerns surrounding divorce law in Massachusetts. We hope this FAQ is helpful, but for real legal assistance, consult an attorney.

Q: My spouse says she/he won’t “give me” a divorce. Can she/he prevent me from getting a divorce?
A: No. Massachusetts has a “no fault” divorce statute that allows one spouse to allege that a marriage is irretrievably broken and obtain a divorce, even if the other spouse does not want a divorce. There are still “fault” grounds for divorce that can be alleged in Massachusetts (including cruel and abusive treatment, desertion and adultery) that the Defendant spouse can factually dispute in an effort to prevent the divorce, but the reality is the vast majority of divorces are ultimately granted on the “irretrievable breakdown” grounds.

Q: My spouse and I have been separated for a long time and we agree on all the terms of a divorce. I am engaged and want to set my wedding date. How quickly can I get divorced?
A: If the parties agree on all the terms of a divorce, they can file a “Joint Petition for Divorce” with the Probate and Family Court, along with the signed Separation Agreement containing the divorce terms and various required related documents, and ask that the Court schedule an uncontested hearing as quickly as possible. Assuming the Judge approves the agreement at the uncontested hearing (he must review it and determine that it is fair and reasonable under the circumstances and that the parties signed it freely and voluntarily having made complete financial disclosures to each other), the Judgment of Divorce Nisi will issue 30 days after the day of the hearing and the Judgment will become final and absolute 90 days after that (i.e. 120 days after your hearing). You are not legally free to re-marry until the Judgment Absolute enters.

Q: My spouse and I think we are going to be able to agree to all the terms of a divorce settlement and want to try to minimize our legal expenses. Should we use a Mediator instead of an Attorney?
A: Many divorcing couples successfully use a mediator to come to an agreement as to the terms of their divorce. A mediator is trained to facilitate the conversation between the parties and help guide them in coming to a resolution that works for both of them. The mediator is not representing either party and cannot give them any legal advice. The best practice when working with a mediator is for each party to be also working with an attorney who can advise them during the mediation process and review the agreement reached through mediation before finalizing it. This process can save on legal fees in some, but not all cases. Many divorce cases also resolve by agreement where one or both spouses work with an attorney who represents one person’s interests and assists in the negotiation of the settlement on their behalf. In no event can one attorney represent both spouses in a divorce; this is a conflict of interest.

Q: My spouse and I are separated and have minor children, who have lived with me since the separation. Can I decide when my spouse sees the children?
A: Married parents of children are presumed to have joint custody of them; absent court orders to the contrary (compare the presumption, described below, for unmarried parents). If you and your spouse are in agreement on these issues or your spouse simply is willing to accept your decisions in this regard, you do not necessarily need court orders. However, if a dispute arises regarding any issues relating to the care or custody of your children, you will need to go to the Probate and Family Court for relief. You will not need to file for divorce to get these types of orders if you prefer not to take that step at this time.

Q: Our house is only in my spouse’s name; does this mean that I have no rights to the equity or to stay in it if we divorce?
A: No, Massachusetts is an “equitable distribution” vs. a “community property” state. What this means is that any assets held in the name of either spouse are considered marital assets and they can and will be “equitably” divided at the time of the divorce. There are 16 statutory factors the Court considers in how to equitably divide assets when a couple divorces. These are known as the “Section 34” factors (for the section of the divorce statute, M.G.L. Chapter 208 where they are listed). Whether or not one spouse will be permitted to remain in the former marital home post-divorce depends on the circumstances. Although property is typically divided at the time of a divorce pursuant to this concept of equitable distribution (by property either being sold or one party buying the other out), there are some cases involving minor children where the custodial parent is permitted to stay in the former marital home for a period of time post-divorce and the former spouse has to wait for his/her share of the equity.

Q: What about debts? Am I responsible for credit card debt in my spouse’s name?
A: Debts are treated the same as assets; they are equitably divided at the time of divorce regardless of whose name they are in. Thus, even though a creditor cannot force you to pay a debt that is only in your spouse’s name, the Probate and Family Court Judge can order that you are responsible for some or all of such a debt. Similarly, debt in your name can be made the responsibility of your spouse. The same Section 34 factors go into the analysis of debt division. However, it is important to note that this type of court order does not bind the creditor, who is free to seek collection from the legally obligated borrower regardless of how the divorce judgment divides the debt. If someone does not comply with an order to pay debt that is in the former spouse’s name, the order must be enforced through the Contempt process at the Probate and Family Court.

Q: What is the difference between physical and legal custody?
A: The concept of custody of children is broken down into two types of custody, physical custody and legal custody. The Probate and Family Court makes orders for either sole or joint/shared custody for each type of custody.

Sole physical custody means the child resides with one parent and that parent generally supervises and makes the day-to-day decisions for the child. The other parent (“non-custodial parent”) will have reasonable visitation (more often now called “parenting time”) with the child unless it is not in the child’s best interests. When the child has substantial periods of time residing with each parent, it will be considered a “shared physical custody” arrangement. In this case, each parent supervises the child and exercises the day-to-day decision making while the child resides with them. There is no specific standard as to when a non-custodial parent’s parenting time is so extensive as to make it a shared physical custody arrangement, but it is most commonly viewed as a shared physical custody arrangement when the child resides approximately half the time with each parent.

Legal custody means the responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and religious upbringing. When parents have joint legal custody, they are mutually responsible for these decisions and must consult with each other in doing so. When one parent has sole legal custody, that parent has the right to make these decisions without consulting the other parent.

Q: I am divorced and have sole physical and legal custody of the children. My former spouse is very irresponsible and seldom sees our children. In my will, can I name someone else as guardian of my children in the event of my death?
A: Yes, in your will you can appoint someone besides your former spouse to be guardian of your minor children in the event of your death. However, your wishes may not be followed. The presumption is that the surviving parent will have custody of the children unless he or she consents to the guardianship or is found to be unfit by the Probate Court. His/her fitness will be judged based on the circumstances at the time of your death. This is the case whether or not you were married to the surviving parent.

Q: How long do I have to pay child support? My former spouse has custody of our children, and the youngest is now 19 years old, living at home and not working.
A: In Massachusetts, although custody determinations end at age 18, child support can be ordered until “emancipation”. Children aged 18 to 20 who are domiciled with a parent and who are principally dependent upon that parent for their support are considered un-emancipated and the other parent can be ordered to contribute to their support. This is the case regardless of
the child’s school attendance. Children ages 21 and 22 who meet the above criteria are also considered un-emancipated if they are enrolled in an undergraduate educational program.
Parents can also be ordered to contribute to college expenses as a form of child support.

Q: My boyfriend and I had a baby together. His name is on the birth certificate. We recently broke up and we are arguing about when he will see the baby. What are my rights?
A: Unlike the presumption for children born to married parents, when a child is born to unmarried parents, the mother is presumed to have sole legal and physical custody of the child absent any court orders to the contrary. This is the case even if the father’s name is on the birth certificate. You have the right to make all decisions about his access to the baby, and if he does not agree with what you are allowing, he must go to Court to change this.

Q: My 21 year old daughter has a child out-of –wedlock; she and the father recently split up and I don’t think she (or the father) is capable of caring for the baby. I’m worried about my grandchild’s well being. Can I get custody?
A: If both parents consent to you becoming the guardian (the term when a non-parent has custody of a minor child) of the child, this can be accomplished fairly easily by submitting the necessary paperwork at the Probate Court. However, if one or both parents do not consent, the Court cannot name you guardian unless the non-consenting parent(s) is found to be unfit. This is a different standard than would apply in a custody dispute between the parents, where the issue is what is in the child’s best interest. Grandparents also have, in some circumstances, statutory rights to visit with their grandchildren over the parent’s objection, but recent case law has limited the situations in which the Court can order grandparent visitation.