What can you expect when starting the divorce process?
First, you will need to find a divorce attorney with whom you feel comfortable. Once you retain an attorney, you can decide how you want to proceed with your divorce. You have the option of filing for divorce (“1B divorce”) where you will be the plaintiff and your spouse the defendant. https://malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section1B. It does not matter who is plaintiff or defendant and the vast majority of cases as filed on the grounds of irretrievable breakdown of the marriage. Or, you can work everything out through your attorneys and when everything is settled, you can file a “1A” divorce which is an uncontested divorce. https://malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section1A. “1B” filings cannot be finalized until six months after the date of filing. However, if your case resolved before then, you can convert your case to a “1A” proceeding and get divorced. A divorce is filed in the county in which you last resided together as a couple.
You need a certified copy of your marriage certificate in order to file for divorce which can be obtained from the town hall in which you were married. Once a divorce is filed under “1B”, you will need to accomplish certain things within a certain number of days of filing. The first item is that you need to serve your spouse with the divorce paperwork by in-hand delivery either through his or her counsel or by constable. Once a divorce is filed, there is an automatic restraining order on assets such that neither party can change beneficiary designations, incur debt, or spend money other than in the ordinary course of spending and for legal fees. Also, you will need to do certain things such as gather documents such as account statements and tax returns and other documents listed in Rule 410 and provide them to your attorney. A list of what needs to be produced can be found here: https://www.mass.gov/supplemental-rules-of-the-probate-and-family-court/supplemental-probate-and-family-court-rule-410. If you have minor children, you also need to complete a parenting class separate from your spouse geared toward education on parenting apart. The standing order governing parenting education course can be found here: https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-2-16-parent-education. A list of court approved programs by county can be found here: https://www.mass.gov/info-details/parent-education-programs. You will receive a certificate of completion that will need to be filed with the court.
If necessary, you have the option of going to court to obtain temporary orders that will govern while your case is pending than can address physical separation, parenting plans, support, health insurance and the like. Once 410 documents are exchanged, you have the option of engaging in additional discovery which is accomplished via a Request for Production of Documents, Interrogatories, subpoenas and depositions. In contested custody cases, sometimes a Guardian ad litem (“GAL”) is appointed to investigate and report back to the court as to what is in the children’s best interests. If a business needs to be valued, a business valuator is retained. Sometimes a forensic accountant is required. Depending on the facts of the case, the discovery process can take many months. Divorces are usually put on a fourteen-month resolution track. Most resolve sooner than that but some do not.
The most important document that you will prepare in conjunction with your attorney is your financial statement which discloses all of your income, assets and liabilities as well as all of your weekly expenses. There are two forms, one which applies if you earn under $75,000 per year (“short form”) and one if you earn over $75,000 per year (“long form”). Court financial forms can be found here: https://www.mass.gov/info-details/court-financial-statement-forms. “Rule 401” financial statements are printed on pink paper and are impounded and not available for public inspection when filed with the court. Our firm carefully crafts financial statements to accurately reflect income, whether it is W2, 1099, K-1, trust, or passive income. We represent everyone from W2 employees to Subchapter S or C business owners. If you have Schedule C income, a separate schedule needs to be completed to reflect your profit and expenses from the prior year. If you have a vested interest in a trust, that too needs to be disclosed on your financial statement. Attorney Gina Calabro is very experienced in the preparation of complex financial statements.
Eventually, after six months from the date of filing, you will obtain a pretrial conference date which is a substantive hearing in front of your assigned judge and is a date on which you may be able to get divorced. Prior to this hearing, you are required to have a four-way settlement meeting with your counsel, as well as your spouse and his or her counsel. Provided a global agreement is reached, a Separation Agreement is drafted and signed by the parties. In the event some issues remain in dispute, both counsel draft pretrial memoranda for submission to the Court outlining the issues in the case. The judge provides feedback following oral argument which is usually helpful in resolving the case. In the event no settlement is reached at the pretrial, the court will either set the matter down for a further pretrial conference, a status conference or a trial. Trial dates are typically not available for many months.
At a hearing in which you get divorced, you will be asked a series of questions by the judge to ensure you understand the Separation Agreement and that you signed it freely and voluntarily. The Court finds the Separation Agreement fair and reasonable under the circumstances and incorporates it in to a Judgment of Divorce. A “1B” divorce is final after the expiration of ninety days and a “1A” divorce is final after the expiration of 120 days. You remain legally married during this time frame but the terms of your Separation Agreement are binding upon approval by the Court.
What is a Trial?
If your matter proceeds to trial, a judge will decide your case following a multi-day hearing at which witnesses will testify and documents will come in to evidence. This is an expensive and time intensive process. It is always best to resolve your case prior to trial, except in very limited circumstances. We always keep the possibility of trial in mind as we proceed through the various aspects of your case so that we are prepared when the time comes.
While all of our partners are skilled trial attorneys, Attorney Jim Brick is incredibly skilled and versed in the rules of evidence, as he has been trying cases for over 35 years. He has tried more removal cases (where one parent seeks to move out of state with the children or prevent such a move) than any other attorney in the Commonwealth.
What is a Vaughan Affidavit?
A Vaughan Affidavit is an affidavit that can be completed and signed under oath by a third party, typically a parent, who may have provided in their estate plan for a party going through a divorce. Since expectancy of inheritance and “opportunity of each for future acquisition of capital assets and income” are factors the Court must consider in dividing property in a divorce, parents may be dragged in to divorce proceedings but insulated from discovery and depositions by producing a Vaughan Affidavit.