For a married couple seeking a divorce, there are two ways to proceed:
Uncontested Petition for Divorce
When a couple agrees on all of the terms of their divorce including parenting time, division of assets and liabilities, and alimony and/or child support they can file a Joint Petition for Divorce. In order to file a Joint Petition, the parties must enter into a comprehensive written Agreement called a “Separation Agreement” – often with the assistance of counsel or a mediator. After the Separation Agreement is finalized, the parties will file it along with a Joint Petition for Divorce, a Joint Affidavit of Irretrievable Breakdown, and Financial Statements for the Court’s approval. This is the quickest and easiest way to divorce, but frequently parties are not able to reach agreement. When this is the case, one party can file a Complaint for Divorce in order to move the case toward resolution.
Contested Complaint for Divorce
Litigation begins when one party files a Complaint and serves it on the defendant. Service happens two ways: a constable delivers a copy of the Complaint to the defendant’s last known address, or, the defendant can accept service by signing a document called the “Summons” in the presence of a notary.
Once the defendant receives the Complaint, they have a specified amount of time to file an Answer. At the same time, the defendant may want to file a Counterclaim for relief, or, assert Affirmative Defenses.
Automatic Restraining Order Against Assets
When a Complaint for Divorce is served in Massachusetts there is an “Automatic Restraining Order Against Assets.” This Automatic Restraining Order was created by a Supplemental Probate Court Rule, and, applies only to assets and income. Both parties are precluded from transferring assets to third parties, including their children, purchasing expensive assets, or things they would not normally acquire, or changing the beneficiaries on their accounts.
Motions for Temporary Orders
Once a Complaint has been served, either party can ask the Court to order temporary relief by filing and serving a Motion for Temporary Orders. For example, a motion for temporary orders can request implementation of a parenting plan, implementation of a child support or alimony order, assignment of certain expenses, such as the mortgage, or, assigning responsibility to pay marital debt.
After serving a Motion for Temporary Orders, there will be a court hearing allowing both parties to explain to the Court why they are entitled to the relief they’ve requested. Typically, parties do not testify and there are no witnesses at a Temporary Order hearing.
In most cases, once entered, Temporary Orders will be in place for the duration of the trial, and, can only be modified if there has been a meaningful change of circumstances.
Discovery is the process of gathering information that can help you and Attorney Clapp determine what is the best result for you.
The Probate and Family Court is a court of “next event scheduling.” This means that in most cases, at conclusion of every hearing, the next hearing is scheduled. This is the Probate and Family Court’s way of making sure cases proceed through the process and don’t get stuck.
After either a Motion for Temporary Orders, or, a Case Management Conference the Court will schedule a Pretrial Conference. At the Pretrial Conference, both parties are given the opportunity to present their best case to the Judge. Each party will file a lengthy memo, and, their attorneys will make an argument on their behalf about why the judge should see the facts and decide the case in their favor. After the parties’ lawyers’ presentations, the Judge will typically give feedback about she or he believes the case could be resolved without trial.
Settlement or Trial
Parties frequently reach an agreeable settlement along the way, and when they do, the parties can enter into a comprehensive Agreement that outlines all of the terms of their separation, including a parenting plan, division of assets and liabilities, and child support and/or alimony. This Agreement can be presented to the Court for approval and the case will conclude without a trial and the case is resolved. If no settlement is reached, the case progresses to a court trial. Trials can be an afternoon, an entire day, or sometimes two or more days. After trial, the Court will make the decisions about any contested issue.