Massachusetts Divorce Statutes §Chapter
208: Section 1. General provisions. Grounds
Section 1. A divorce from the bond of matrimony may be adjudged for adultery, impotency,
utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication
caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if
a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and
maintenance for the other spouse, or for an irretrievable breakdown of the marriage as provided in sections one A and B;
provided, however, that a divorce shall be adjudged although both parties have cause, and no defense upon recrimination shall
be entertained by the court. Chapter 208: Section 1A Massachusetts divorce statutes. Irretrievable breakdown of marriage;
commencement of action; complaint accompanied by statement and dissolution agreement; procedure
Section 1A. 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. After a hearing
on a separation agreement which has been presented to the court, the court shall, within thirty days of said hearing, make
a finding as to whether or not an irretrievable breakdown of the marriage exists and whether or not the agreement has made
proper provisions for custody, for support and maintenance, for alimony and for the disposition of marital property, where
applicable.
In making its finding, the court shall apply the provisions of section thirty-four, except that the court shall
make no inquiry into, nor consider any evidence of the individual marital fault of the parties. In the event the notarized
separation agreement has not been filed at the time of the commencement of the action, it shall in any event be filed with
the court within ninety days following the commencement of said action. If the finding is in the affirmative, the court shall
approve the agreement and enter a judgment of divorce nisi. The agreement either shall be incorporated and merged
into said judgment or by agreement of the parties, it shall be incorporated and not merged, but shall survive and remain
as an independent contract.
In the event that the court does not approve the agreement as executed, or modified by agreement
of the parties, said agreement shall become null and void and of no further effect between the parties; and the action shall
be treated as dismissed, but without prejudice. Following approval of an agreement by the court but prior to the entry of
judgment nisi, said agreement may be modified in accordance with the foregoing provisions at any time by agreement of the
parties and with the approval of the court, or by the court upon the petition of one of the parties after a showing of a
substantial change of circumstances; and the agreement, as modified, shall continue as the order of the court.
Thirty days from the time that the court has given its initial approval to a dissolution agreement of the parties which
makes proper provisions for custody, support and maintenance, alimony, and for the disposition
of marital property, where
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applicable, notwithstanding subsequent modification of said
agreement, a judgment of divorce nisi shall be entered without further action by the parties.
Nothing in the foregoing shall prevent the court, at any time prior to the approval of the
agreement by the court, from making temporary orders for custody, support and maintenance, or such other temporary orders
as it deems appropriate, including referral of the parties and the children, if any, for marriage or family counseling.
Prior
to the entry of judgment under this section, the petition may be withdrawn by mutual agreement of the parties.
An action
commenced under this section shall be placed by the register of probate for the county in which the action is so commenced
on a hearing list separate from that for all other actions for divorce brought under this chapter, and shall be given a speedy
hearing on the dissolution agreement insofar as that is consistent with the wishes of the parties.
Chapter 208: Section 1B. Irretrievable breakdown of marriage; commencement of action; waiting period; unaccompanied complaint;
procedure
Section 1B. An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced by the
filing of the complaint unaccompanied by the signed statement and dissolution agreement of the parties required in section
one A. No earlier than six months after the filing of the complaint, there shall be a hearing and the court may enter a judgment
of divorce nisi if the court finds that there has existed, for the period following the filing of the complaint and up to
the date of the hearing, a continuing irretrievable breakdown of the marriage. Notwithstanding the foregoing, at the election
of the court hereunder, the aforesaid six month period may be waived to allow the consolidation for the purposes of hearing
a complaint commenced under this section with a complaint for divorce commenced by the opposing party under section one.
The filing of a complaint for divorce under this section shall not affect the ability of the defendant to obtain a hearing
on a complaint for divorce filed under section one, even if the aforesaid six month period has not yet expired. Said six
month period shall be determined from the filing of a complaint for divorce. In the event that a complaint for divorce is
commenced in accordance with the provisions of section 1- A or is for a cause set forth under section one, and said complaint
is later amended to set forth the ground established in this section, the six month period herein set forth shall be computed
from the date of the filing of said complaint.
As part of the entry of the judgment of divorce nisi, appropriate orders shall
be made by the court with respect to custody, support and maintenance of children, and, in accordance with the provisions
of section thirty-four, for alimony and for the disposition of marital property. Nothing in the foregoing shall prevent the
court, at any time prior to judgment, from making temporary orders for custody, support and maintenance or such other temporary
orders as it deems appropriate, including referral of the parties and the children, if any, for marriage or family counseling.
Prior to the entry of judgment under this section, in the event that the parties file the statement and dissolution agreement
as required under section one A herein above, then said action for divorce shall proceed under said section one A.
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Massachusetts Divorce Statutes §Chapter
208: Section 28. Children; care, custody and maintenance; child support obligations; provisions for education and health
insurance;
Section 28. Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care,
custody and maintenance of the minor children of the parties and may determine with which of the parents the children or
any of them shall remain or may award their custody to some third person if it seems expedient or for the benefit of the
children. In determining the amount of the child support obligation or in approving the agreement of the parties, the court
shall apply the child support guidelines promulgated by the chief justice for administration and management, and there shall
be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the
appropriate amount of child support to be ordered.
If, after taking into consideration the best interests of the child, the
court determines that a party has overcome such presumption, the court shall make specific written findings indicating the
amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate
under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure
is consistent with the best interests of the child. Upon a complaint after a divorce, filed by either parent or by a next
friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment
as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial
change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests
of the children.
In furtherance of the public policy that dependent children shall be maintained as completely as possible
from the resources of their parents and upon a complaint filed after a judgment of divorce, orders of maintenance and for
support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the
amount that would result from application of the child support guidelines promulgated by the chief justice for administration
and management or if there is a need to provide for the health care coverage of the child. A modification to provide for
the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary.
There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines
is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child,
the court determines that a party has overcome such presumption, the court shall make specific written findings indicating
the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust
or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and
that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the
inconsistency between the amount of the existing order and the amount of the order that would result from application of
the guidelines is due to the fact that the amount of the existing order |
resulted from a rebuttal of the
guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that
even if the specific facts that justified departure from the guidelines upon entry of the existing order remain in effect,
the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be
unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the
child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance.
If the IV-D agency as set forth in chapter 119A is responsible for enforcing a case, an order may also be modified in accordance
with the procedures set out in section 3B of said chapter 119A. The court may make appropriate orders of maintenance, support
and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in
the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders
of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three,
if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to
the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.
When
the court makes an order for maintenance or support of a child, said court shall determine whether the obligor under such
order has health insurance or other health coverage on a group plan available to him through an employer or organization
or has health insurance or other health coverage available to him at a reasonable cost that may be extended to cover the
child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available
to him, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage
in favor of the child or obtain coverage for the child. When a court makes an order for maintenance or support, the court
shall determine whether the obligor under such order is responsible for the maintenance or support of any other children
of the obligor, even if a court order for such maintenance or support does not exist, or whether the obligor under such order
is under a preexisting order for the maintenance or support of any other children from a previous marriage, or whether the
obligor under such order is under a preexisting order for the maintenance or support of any other children born out of wedlock.
If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility
such court shall take into consideration such responsibility in setting the amount to paid under the current order for maintenance
or support.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the
first degree of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify
his assent and assents to such order; provided, further, that until such order is issued, no person shall visit, with the
child present, a parent who has been convicted of murder in the first degree of the other parent of the child without the
consent of the child’s custodian or legal guardian.
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Massachusetts Divorce Statutes §Chapter
208: Section 28A. Temporary care; custody and maintenance of minor children
Section 28A. During the pendency of an action seeking a modification of a judgment for divorce, upon motion of either
party or of a next friend on behalf of the minor children of the parties and notice to the other party or parties, the court
may make temporary orders relative to the care, custody and maintenance of such children. Every order entered relative to
care and custody shall include specific findings of fact made by the court which clearly demonstrate the injury, harm or
damage that might reasonably be expected to
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occur if relief pending a judgment of modification is not granted.
An order entered relative to care and custody, pursuant to this section, may only be entered without advance notice if the
court finds that an emergency exists, the nature of which requires the court to act before the opposing party or parties
can be heard in opposition. In all such cases, such order shall be for a period not to exceed five days and written notice
of the issuance of any such order and the reasons therefore shall be given to the opposing party or parties together with
notice of the date, time and place that a hearing on the continuation of such order will be held.
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Massachusetts Divorce Statutes §Chapter
208: Section 31. Custody of children; shared custody plans
Section 31. For the purposes of this section, the following words shall have the following meaning unless the context
requires otherwise: “Sole legal custody”, one parent shall have 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”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s
welfare including matters of education, medical care and emotional, moral and religious development. “Sole physical
custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by
the other parent, unless the court determines that such visitation would not be in the best interest of the child. “Shared
physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided,
however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact
with both parents.
In making an order or judgment relative to the custody of children, the rights of the parents shall, in
the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.
When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present
or past living conditions adversely affect his physical, mental, moral or emotional health. Upon the filing of an action
in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter
two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents
shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter
an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not
be in the best interest of the child.
Nothing herein shall be construed to create any presumption of temporary shared physical
custody. In determining whether temporary shared legal custody would not be in the best interest of the child, the court
shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other
drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters
concerning the child. If, despite the prior or current issuance of a restraining
order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either
as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody
order. There shall be no presumption either in favor of or against shared |
legal or physical custody at the time of the trial
on the merits, except as provided for in section 31A.
At the trial on the merits, if the issue of custody is contested and
either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the
trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the
child’s education; the child’s health care; procedures for resolving disputes between the parties with respect
to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit
with him, including holidays and vacations, or the procedure by which such periods of time shall be determined. At the trial
on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue
a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan
submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties.
The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation
plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate
custody orders and orders regarding the responsibility of the parties for the support of the child. Provisions regarding
shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses
the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.
An award of shared legal or physical custody shall not affect a parent’s responsibility for child support.
An order
of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is
an otherwise sufficient basis warranting modification. The entry of an order or judgment relative to the custody of minor
children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital
or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided,
however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial
parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior
address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may
order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. Where
the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance
with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best
interests of the children.
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Massachusetts Divorce Statutes §Chapter
208: Section 34B. Order to vacate marital home
Section 34B Massachusetts divorce statutes. Any court having jurisdiction of actions for
divorce, or for nullity of marriage or of separate support or maintenance, may, upon commencement of such action and during
the pendency thereof, order the husband or wife to vacate forthwith the marital home for a period of time not exceeding ninety
days, and upon further motion for such additional certain period of time, as the court deems necessary or appropriate if
the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with
the parties would be endangered or substantially impaired by a failure to enter such an order. The opposing party shall be
given at least three days’ notice
of such hearing and may appear and be heard either in person or by his attorney. |
If the moving party demonstrates a substantial likelihood
of immediate danger to his or her health, safety or welfare or to that of such minor children from the opposing party, the
court may enter a temporary order without notice, and shall immediately thereafter notify said opposing party and give him
or her an opportunity to be heard as soon as possible but not later than five days after such order is entered on the question
of continuing such temporary order. The court may issue an order to vacate although the opposing party does not reside in
the marital home at the time of its issuance, or if the moving party has left such home and has not returned there because
of fear for his or her safety or for that of any minor children.
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Massachusetts Divorce Statutes § Chapter
209: Section 37. Support orders for children of separated parents; child support guidelines; modification of orders; provisions
for education and health insurance; parents convicted of first degree murder
Section 37. If the parents of minor children live apart from each other, not being divorced, the probate court for the
county in which said minors or any of them are residents or inhabitants, upon complaint of either parent, or of a next friend
in behalf of the children after notice to both parents, shall have the same power to make judgments relative to their care,
custody, education and maintenance, and to revise and alter such judgments or make new judgments.
In determining the amount
of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines
promulgated by the chief justice for administration and management, and there shall be a rebuttable presumption that the
amount of the order which would result from the application of the guidelines is the appropriate amount of child support
to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has
overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result
from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances;
the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the
best interests of the child.
In furtherance of the public policy that dependent children shall be maintained as completely
as possible from the resources of their parents and upon a complaint filed after a judgment of support, orders of maintenance
and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order
and the amount that would result from application of the child support guidelines promulgated by the chief justice for administration
and management or if there is a need to provide for the health care coverage of the child. A modification to provide for
the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary.
There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines
is the appropriate amount of child support to be ordered.
If, after taking into consideration the best interests of the child,
the court determines that a party has overcome the presumption, the court shall make specific written findings indicating
the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust
or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and
that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the
inconsistency between the amount of the existing order and the amount of the order that would result from application of
the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that
there has been no change in
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the circumstances which resulted in such rebuttal; provided,
however, that even if the specific facts that justified departure from the guidelines upon entry of the original order remain
in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount
would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests
of the child.
A modification of child support may enter notwithstanding an agreement of the parents that has independent
legal significance. If the IV-D agency is responsible for enforcing the case, an order may also be modified in accordance
with the procedures set out in section 3B of chapter 119A. The probate court may make appropriate orders of maintenance,
support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled
in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders
of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three
if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to
the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.
When
the court makes an order for support or maintenance on behalf of a child, and such child is not covered by a private group
health insurance plan, said court shall determine whether the obligor under such order has health insurance or other health
coverage on a group plan available to him through an employer or organization, or has health insurance or other health coverage
available to him at a reasonable cost, that may be extended to cover the spouse or child for whom support is ordered. When
said court has determined that the obligor has such insurance, said court shall include in the support order a requirement
that the obligor exercise the option of additional coverage in favor of such child or obtain coverage for the child. When
a court makes an order for maintenance or support, the court shall determine whether the obligor under such order is responsible
for the maintenance or support for any other children of the obligor, even if a court order for such maintenance or support
does not exist, or for any preexisting order for the maintenance or support of any other children from a previous marriage,
or for any preexisting order for the maintenance or support of any other children born out of wedlock. If the court determines
that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility such court shall take
into consideration such responsibility in setting the amount to be paid under the current order for maintenance or support.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the first degree
of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify his assent
and assents to such order; provided, further, that until such order is issued, no person shall visit, with the child present,
a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the
child’s custodian or legal guardian. |
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Massachusetts Divorce Statutes § Chapter
209: Section 32F. Married persons living apart; actions for support
Section 32F Massachusetts divorce statutes. (a) If no order for support pursuant to an action
filed under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter has been entered,
the district court, the Boston municipal court or the probate and family court shall have concurrent jurisdiction under this
section to order a spouse to support the other spouse or to order a parent to support his dependent child; provided however,
that nothing herein shall be construed to grant jurisdiction to the district court or Boston municipal court to determine
the parentage of a child.
A complaint may be filed by the IV-D
agency against a spouse seeking an order for support of his dependent child. A complaint may also be filed by a married person
for the support of the dependent child in his care or, if living apart from his spouse, for his own support. The court shall
have jurisdiction to order a sum to be paid periodically for the current support of a child or of a spouse and child or of
a spouse and shall have jurisdiction to order a spouse or parent to reimburse the other spouse or the IV-D agency on behalf
of the department of transitional assistance or the department of social services for past support including medical expenses,
provided to his spouse or child, notwithstanding the fact that at the time of the hearing the parties are no longer receiving
public assistance.
When an action is commenced by the spouse or, on behalf of the child entitled to receive support, by the
guardian, next of kin or person having care and physical custody of the child, and the spouse or child is or was a recipient
of benefits under chapters one hundred and seventeen, one hundred and seventeen A or one hundred and eighteen, the court
shall require notice to the IV-D agency of the pendency of the action and the agency shall be permitted to intervene in such
action. When the action is commenced on behalf of such department of transitional assistance or said department of social
services or anyone other than the spouse or parent of a child entitled to receive support, the court shall ensure that such
spouse and all parties are notified of the action and of any motions for temporary orders for support.
A spouse or parent
or custodian shall be permitted to intervene in the action as of right. In an action pursuant to this section where the rights
to support of a party have been subrogated to the commonwealth pursuant to chapters 18, 119, or 118E, or Title IV, Parts
A or E, or Title XIX of the Social Security Act, or any other public assistance program as required by federal or state law,
the court shall proceed to establish an order for support pursuant to this section, notwithstanding the failure of the party
to attend a hearing, upon a showing that written notice of the hearing was provided to the party by first class mail to the
most recent residential address that the party has provided to the department of transitional assistance, the department
of social services or the division of medical assistance.
For good cause shown, the court may set aside an entry of default
and, if an order or judgment has been entered, may likewise set aside the order or judgment in accordance with rule 60(b)
of the rules of domestic relations procedure.
(a) If no order for support pursuant to an action filed under chapters two
hundred and seven, two hundred and eight or section thirty-two of this chapter has been entered, the district court, the
Boston municipal court or the probate and family court shall have concurrent jurisdiction under this section to order a spouse
to support the other spouse or to order a parent to support his dependent child; provided however, that nothing herein shall
be construed to grant jurisdiction to the district court or Boston municipal court to determine the parentage of a child.
A complaint may be filed by the IV-D agency against a spouse seeking an order for support of his dependent child. A complaint
may also be filed by a married person for the support of the dependent child in his care or, if living apart from his spouse,
for his own support. The court shall have jurisdiction to order a sum to be paid periodically for the current support of
a child or of a spouse and child or of a spouse and shall have jurisdiction to order a spouse or parent to reimburse the
other spouse or the IV-D agency on behalf of the department of transitional assistance or the department of children and
families for past support including medical expenses, provided to his spouse or child, notwithstanding the fact that at the
time of the hearing the parties are no longer receiving public assistance. When an action is commenced by the spouse or,
on behalf of the child entitled to receive support, by the guardian, next of kin or person having care and physical custody
of the child, and the spouse or child is or was a recipient of benefits under chapters one hundred and seventeen, one hundred
and seventeen A or one hundred and eighteen, the court shall require notice to the IV-D agency of the pendency of the action
and the agency shall be permitted to intervene in such action.
When the action is commenced on behalf of such department
of transitional assistance or said department of children and families or anyone other than the spouse or parent of a child
entitled to receive support, the court shall ensure that such spouse and all parties are notified of the action and of any
motions for temporary orders for support. A spouse or parent or custodian shall be permitted to intervene in the action as
of right. In an action pursuant to this section where the rights to support of a party have been subrogated to the commonwealth
pursuant to chapters 18, 119, or 118E, or Title IV, Parts A or E, or Title XIX of the Social Security Act, or any other public |
assistance program as required by federal or state
law, the court shall proceed to establish an order for support pursuant to this section, notwithstanding the failure of the
party to attend a hearing, upon a showing that written notice of the hearing was provided to the party by first class mail
to the most recent residential address that the party has provided to the department of transitional assistance, the department
of children and families or the division of medical assistance. For good cause shown, the court may set aside an entry of
default and, if an order or judgment has been entered, may likewise set aside the order or judgment in accordance with rule
60(b) of the rules of domestic relations procedure.
(b) Proceedings under this section shall be filed in the judicial district or county where
either spouse lives except that if the action includes or is on behalf of a minor child who does not live with either parent,
the action shall be filed in the judicial district or county where the child lives. There shall be no filing fee for actions
pursuant to this section. Service of the complaint shall be made in accordance with applicable rules of court. In addition
to those otherwise authorized to serve civil process, any officer authorized under the laws of the commonwealth to serve
criminal process may serve any process under this section.
(c) During the pendency of an action under this section and pursuant
to the procedures adopted under chapter two hundred and twenty-one B, if applicable, temporary orders providing for the support
of the spouse or children, may be entered. Such orders shall continue in force until modified or revoked, and shall be superseded
by an order or judgment pursuant to an action under chapter two hundred and eight, under section thirty-two of this chapter
or under chapter two hundred and seven.
(d) In determining the amount of the child support obligation or in approving the
agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration
and management, and there shall be a rebuttable presumption that the amount of the order which would result from the application
of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best
interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written
findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount
would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the
guidelines; and that such departure is consistent with the best interests of the child.
(e) The court has continuing jurisdiction
to modify, increase, decrease or revoke a judgment of support at any time after the judgment was made upon a complaint for
modification pursuant to section thirty-seven. If the IV-D agency is responsible for enforcing the case, an order may also
be modified in accordance with the procedures set out in section 3B of chapter 119A. (f) No proceedings under this section
shall be commenced or entertained if there is a prior pending action between the spouses or regarding the child entitled
to support under chapters two hundred and seven, or chapter two hundred and eight or under section thirty-two of this chapter.
If an action under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter is filed after
the commencement of proceedings or after a judgment under this section, any support order or judgment issued in such action
shall supersede any support order or judgment and any income assignment made under this section. Nothing herein shall prevent
the probate and family court department in any proceeding under chapters two hundred and seven, two hundred and eight or
section thirty-two of this chapter from entering an order or judgment enforcing any order or judgment under this section
which has not been paid or entering an order or judgment enforcing provisions for payment contained in a judgment entered
under this section.
(g) The administrative justices of the district, Boston municipal and probate and family court department
of the trial court shall jointly promulgate a form of complaint for use under this section which shall be in such form and
language to permit a plaintiff to prepare and file such complaint pro se.
(h) Any action pursuant to this chapter that is
pending or was previously adjudicated in the district court or Boston municipal court departments may be transferred to the
probate and family court department by any party or by the IV-D agency as set forth in chapter one hundred and nineteen A.
An action shall be transferred upon the filing of the following documents with the probate and family court:--
(1) a copy of the petition, if any, and any accompanying documents;
(2) a copy of the order of the district court or Boston
municipal court, if any;
(3) a copy of the findings of the court, if any;
(4) a copy of the financial statements submitted
by the parties, if any;
(5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the
child support guidelines, if any; and
(6) a copy of the docket maintained by the district court or the Boston municipal court,
if any. Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect,
and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified
in the same manner available to enforce or modify any judgment or order of the probate and family court. Transfer of an order
pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may
be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district
or Boston municipal court departments.
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Massachusetts Divorce Statutes §Chapter
209: Section 32. Order prohibiting restraint of personal liberty of spouse; support, custody and maintenance orders; information
provided to complainant; domestic violence record search; investigations; factors determining support amount
Section 32. If a spouse fails, without justifiable cause, to provide suitable support of the other spouse, or deserts
the other spouse, or if a married person has justifiable cause for living apart from his spouse, whether or not the married
person is actually living apart, the probate court may, upon the complaint of the married person, or if he is incompetent
due to mental illness or mental retardation upon the complaint of the guardian or next friend, prohibit the spouse from imposing
any restraint upon the personal liberty of the married person during such time as the court by its order may direct or until
further order of the court thereon.
Upon the complaint of any such party or guardian of a minor child made in accordance
with the Massachusetts Rules of Civil Procedure the court may make further orders relative to the support of the married
person and the care, custody and maintenance of minor children, may determine with which of the parents the children or any
of them shall remain and may, from time to time, upon similar complaint revise and alter such judgment or make a new order
or judgment as the circumstances of the parents or the benefit of the children may require. Upon the filing of a complaint
pursuant to this section to prohibit a spouse from imposing any restraint upon the complainant’s personal liberty,
a complainant shall be informed that proceedings hereunder are civil in nature and that violations of orders issued hereunder
are criminal in nature.
Further, a complainant shall be given information prepared by the appropriate district attorney’s
office that other criminal proceedings may be available and shall be instructed by such district attorney’s office
relative to the procedures required to initiate criminal proceedings including, but not limited to, the filing of a complaint
for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a complainant shall be provided
with such information in the complainant’s native language. When considering a complaint to prohibit a spouse from
imposing any restraint upon the complainant’s personal liberty under this section, a judge shall cause a search to
be made of the records contained within the statewide domestic violence record keeping system maintained by the office of
the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or
criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against
the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that
any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances
where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an
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imminent threat of bodily injury exists to the petitioner.
In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate
law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding
warrant as soon as is practicable. Upon request by the court, the state police, local police or probation officers shall
make an investigation in relation to any proceedings and report to the court.
Every such report shall be in writing and shall
become a part of the record of such proceedings. In determining the amount of a support order, if any, to be made, the court
shall consider, but is not limited to, the following factors, to the extent pertinent and raised by the parties:
(a) the
net income, assets, earning ability, and other obligations of the obligor;
(b) the number and ages of the persons to be supported;
(c) the expenses incurred by the obligor and the persons to be supported for the necessities of life, and the usual standard
of living of the persons to be supported;
(d) the assets and net earnings, including a deduction for the provision for childcare,
of the persons to be supported;
(e) the marriage or remarriage of any person being supported;
(f) the responsibilities of
the obligor for the maintenance or support of any other children of the obligor, even if a court order for such maintenance
or support does not exist, or for any preexisting order for the maintenance or support of any other children from a previous
marriage, or for any preexisting order for the maintenance or support of any other children born out of wedlock and that
said obligor is fulfilling such responsibility; and
(g) the capacity of any person being supported or having custody of supported
children, except persons under eighteen years of age, to work or to make reasonable efforts to obtain employment, including
the extent of employment opportunities in fields in which such person is suited for employment, the necessity for and availability
to said person of job training programs, and the extent to which said person is needed during business hours by members of
the family and the availability to said person of child care services and the extent to which such person needs to attend
school to obtain skills necessary for employment.
When the court makes an order for maintenance or support on behalf of a
spouse or child, said court shall determine whether the obligor under such order has health insurance or other health coverage
available to him through an employer or organization or has health insurance or other health coverage available to him at
reasonable cost that may be extended to cover the spouse or child for whom support is ordered. When said court has determined
that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement
that the obligor exercise the option of additional coverage in favor of the spouse and child or obtain coverage for the spouse
and child. No order shall leave a obligor with less money than is required to provide him minimum subsistence, including
food, shelter, utilities, clothing and the reasonable expenses necessary to travel to or obtain employment. |
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The Massachusetts divorce laws that
appear here may not include all provisions of Family Law. Some editing has occurred. You should consult the code
or a Massachusetts divorce attorney.
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