A. Massachusetts is similar to other states, where the state divorce laws mandates its family courts to make divorce, child support and child custody decisions that place the child or children's' interest first, and make the parents and others' wants and needs secondary.
Q. How is child custody determined?
A. Child custody (or who gets the child) is granted to one parent or both parents following a divorce or separation. Nearly all (90%+) of custody cases get settled by the parties during the divorce process. Courts intervene and determine custody where parents cannot agree on a Child Visitation Schedule or a Child Custody Agreement. Factors the court will consider when determining custody may include: the health, lifestyle, and financial situation of each parent as well as the child’s age, gender, health, current living situation, and relationship with each parent. The court may consider statements made by older children and teenagers regarding which parent they would prefer to have custody. In cases where one parent is not clearly favorable over another based on these criteria, a premium is placed on maintaining stability in the child’s lifestyle and routine.
Q. Who is likely to get custody in this state, the Mother or Father?
A. Primary custody is generally awarded to the parent that stays in the home with the child. That is normally Mothers. Courts also, in general, tend to award primary custody to Mothers in more than three-fourths of all cases. Judges are instructed that one gender should not be favored over another, but judges favor Mothers nonetheless. See above answers for a child wanting to live at the other parent's.
Q. What types of custody do judges consider? Will they know what's best for my child?
A. MA divorce laws allow the following custody arrangements:
- Sole Legal Custody - The right of one parent to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development
- Shared Legal Custody - A continuing shared 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 - your child will 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 - your child will have periods of residing with and being under the supervision of each parent; provided, however, that physical custody will be shared by the parents in such a way as to assure your child's frequent and continued contact with both of you.
Q. If both parents share custody, does that mean no one pays child support?
A. No. When one parent has a higher income, expect an exchange of some funds to the other parent. The support, however, should be adjusted lower than an order determined by child support guidelines.
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Download Massachusetts Divorce Forms
[Massachusetts General Laws - Chapter 208 - Sections: 28 and 31]
Q. I'm somewhat familiar with a marriage annulment. What do they do that divorces don't do?
A. Firstly, save yourself some legwork. A Massachusetts annulment 'undoes' a marriage, meaning the marriage never should have taken place, and that the marriage is a void or voidable marriage. You will want an annulment if you were defrauded, deceived, lied to, was underage or coerced into marriage. Otherwise filing for a divorce is the direction you need to go in. Divorce ends a marriage. Annulments make it disappear.
Q. What is the process of a marital annulment. What do I need to do first?
A. You should speak with an attorney well versed in annulments in your state. Many of the decisions courts make are based on case law rather than statutes. Annulments are tricky and complicated. One files a petition like a divorce, cites grounds for annulment, serves the spouse, and requests a hearing.
Q. I was underage when I got married. Is the marriage void? Does it automatically get voided or annulled, or do I need to do something?
A. Underage marriage is a valid ground for annulment. The marriage is void, but it may make sense to go through the annulment process anyway, for legal reasons. You don't want to get caught accused of bigamy if you were to marry later on. Speak with an attorney.
Q. How does Massachusetts divorce law distinguish a void marriage versus a voidable marriage?
A. If one party was not legally able to enter a marriage because, for example, they were already married to someone else, the marriage is 'void' from the beginning. If there is some other reason why the marriage should not be recognized, such as fraud, then the marriage is 'voidable.' When a marriage is void, the parties are not required to file for a Massachusetts annulment but are encouraged to file for an annulment nonetheless. A void marriage would be:
- Where the parties are too closely related by blood (consanguinity),
- Too closely related by marriage (affinity) like a mother-in-law marries a son, or cases of bigamy
- For 'voidable' marriages to be annulled, one must demonstrate fraud or the lack or capacity to understand properly what they did (drugs, alcohol, mental illness, etc.).
[Massachusetts General Laws - Chap 207.1-7, 14-17]
Q. What's the difference between Massachusetts divorce laws and Massachusetts divorce statutes?
A. Semantics, really. MA divorce laws and MA divorce statutes are the laws on the books in this state. They are one in the same for these purposes.
Q. I heard MA child support is paid until the child is 23 years old? Is this true? If so, why is child support paid for so long. Aren't they 'adults' at age 18?
A. A child still living at home and dependent on that parent financially is maintained by child support until age 21. The court may make appropriate child support orders for any child who has attained age twenty-one but who has not attained age twenty-three, if that child is domiciled in the home of a parent, and is principally dependent upon that parent for maintenance due to the enrollment of that child in an educational program.
Q. I understand child support calculations are unique and no other state calculates it in the same way. What's it all about?
A. Yes, and maybe. MA divorce laws mandate that child support calculations use a hybrid of the combination of gross and net methods used in other states.
Q. With a judgment of divorce and Mass child support amounts set, does that mean that that amount is fixed and can't be changed? If my ex loses his job (he does frequently) can he lower payments?
A. No that amount of child support is not permanent. Either one of you can't petition the court for a modification (up or down) based on a change in circumstances. Courts want to see a material change in circumstance that would change the existing amount by 15% or more in order to rule on it.
Q. Do the state's divorce laws allow for an automatic increase in MA child support to offset inflation each year, or is the amount going to remain the same unless or until I go back to court?
A. No, for child support (or alimony for that matter) there is no automatic COLA or cost of living adjustment built into Massachusetts child support guidelines. The wise client and his or her attorney will be sure to have an annual adjustment of child support or alimony in the final order.
Q. I've heard something rather odd about Massachusetts. Is it true that courts (or judges) can and do ignore pre-nuptial agreements when issuing orders?
A. The state's courts are known to be maverick relative to other states, and judges have ignored pre nuptials when ruling on child support, custody, alimony, divorce settlements, and the like. Fasten your seat belt.
Q. What about health insurance? I won't receive enough support to pay for health insurance too. Can we get the spousal support raised to cover insurance premiums?
A. The court will address health insurance with child support. Often one parent already has insurance and a court will order that to continue. If there is no health insurance the court will determine if it can be afforded and who will pay. It won't be "added" to child support amounts though. MA Child support is a separate issue.
Q. How is Massachusetts child support calculated?
A. Child support amounts will be calculated using the guidelines outlined in divorce laws. Look for the child support link above this paragraph, click that on, and follow the instructions.
Q. My ex has fallen behind in support payments. I confronted him demanding what he owes for his kids. He told me he is going bankrupt so he won't have to pay. Can he do this?
A. Most certainly he cannot. Bankruptcy laws are federal laws, prohibiting child support (and some other obligations) from being discharged and removed from his credit file. Child support must be paid no matter what avenue he chooses. Click on the Child Support Assistance link above. They will pursue him for you.
Q. The ex is way way behind on child support. He either quit his job or lost it and I can't reach him by phone. I don't have money to pursue the arrearage in court with a lawyer. How do I get help to get my kids' money?
A. You can do this yourself (it's called acting pro se). What you want is called a contempt proceeding. You can DIY with the forms offered above, or you can go to your Family Court and ask for assistance in filling out the forms. Explain you want back child support. Someone will help you. There may even be an attorney there to assist you. If you need to ask questions about child support by phone, contact the Mass. Dept. of Revenue Child Support Enforcement at (800)332-2733. They have a physical address at: 141 Portland Street, Cambridge, MA 02139.
Q. Is the Mass child support payment I receive taxable to me?
A. No, child support payments are not taxable to the recipient, nor are child support payments deductible to the sender. You may be thinking of alimony, which is taxable to the recipient and tax-deductible to the sender.
Q. My ex won't let me see my children because I'm behind on child support. Can she do this legally?
A. No, she may not. The divorce laws in Massachusetts expressly prohibit a spouse from doing so. File a contempt action to enforce your visitation rights.
Q. My soon-to-ex-husband has a girlfriend. Is there any way I can stop my spouse from visiting the children in the presence of the girlfriend?
A. You might make a request to the court that he be restricted from exposing them until sometime after the divorce is final. There really isn't anything instate statutes that cover this issue.
Q. My ex was just sentenced to three years in prison. My kids and I will make it, but does Massachusetts divorce law allow him to not be liable even though he's in jail?
A. Because child support obligations do not automatically stop when a person is incarcerated, many people leave prison with significant debt. Mass makes no attempt to waive this responsibility. He still owes the money when he comes out.
[Massachusetts General Laws - Chapter 208 - Sections: 28]
Q. Does Massachusetts recognize a 'legal separation'?
A. No, divorce laws in Massachusetts do not officially recognize a legal separation (also known as a marriage separation), although physically separating is a legal act of separating your lives. A separation of husband and wife in MA can mean any number of situations, however, with each of them including that the pair are no longer sharing a residence together. A separation agreement, a written agreement signed by the husband and wife, can and should be drawn up and be made a part of either a formal divorce or part of orders for support and custody.
Q. What is the effect of a marriage separation in Massachusetts?
A. Married couples can choose to live apart from each other and remain married for religious reasons, financial reasons, or for the sake of the children. You may decide to seek a Separate Support Order or a Complaint for Custody. Some seek a judgment of separate support or custody, which addresses custody, visitation, child support, alimony and division of property but keeps the marriage intact.
A. During the divorce process, MA affords you the opportunity to reach a divorce settlement of your marital assets and debt, child custody, visitation schedules and a parenting plan. If you are unable to reach an agreement on assets and debt, the court will impose its interpretation of 'equitable distribution' In either case, one may want to remove any non-marital property (property you inherited during the marriage if segregated properly) and any property you may have entered the marriage with from the home.
Q. I've heard that the separation agreement we will sign and will include disposition of assets can be merged into the judgment of divorce or left outside the judgment of divorce. What's the difference?
A. The answer to your question is complex enough to not make it possible to answer it here, but you should know it can be very important whether or not your separation agreement gets merged into the divorce judgment. The short answer is that you should speak to an attorney who can spell out all the ramifications of each.
Q. My husband wants to offer me a divorce settlement from his retirement accounts (401(k), IRAs, etc) using a QDRO, but I suspect the offer is very low. Is there somewhere I or we can go to get a fair valuation and distribution?
A. You have two choices. You can have your divorce attorney prepare a proposal (they usually hire an outside, third-party for an evaluation) at significant cost, or you can get your soon-to-be-ex to agree to an accurate but affordable method using The QDRO Desk software.
Q. Is there anything I can do to prevent my husband from spending the cash we currently have?
A. If either of you two haven't filed yet, you could lock up the assets. If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.
[Massachusetts General Laws - Chapter 208 - Sections: 1A and 34]
Q. My soon-to-be ex claims he won't be paying me alimony or spousal support, although we both agreed I'd stay home and raise the kids while he pursued a career. Am I out of luck?
A. No, you are not out of luck (although you could have picked a better state to divorce in). Alimony in Massachusetts is not based on statutes because there are no statutes covering this issue. Case law is the basis for alimony, and it isn't friendly to dependent spouses. In fact, in some cases, if your ex should marry in the future and be a Massachusetts resident, that their spouse could be held liable for a portion of the new spouse's alimony obligation. Courts look at the contribution each made to the marriage when determining alimony (spousal support).
Q. Can I get alimony or spousal support right after we separate and before we divorce? I have no job, no income and lots of bills.
A. Yes, courts will order temporary alimony for the duration of the divorce process, or make alimony for a certain period (number of years). Courts in recent years are less inclined to order lifetime alimony but rather rehabilitative alimony so that the dependent spouse has a time frame in which to become self-sufficient.
[Massachusetts General Laws - Chapter 208 - Sections: 1A and 34]
A. Massachusetts divorce laws are intended to be gender-neutral. Courts have a bias in favor of Mothers though. A Child Visitation Schedule (or the Parenting Plan) is something you and your spouse can determine on your own, or with the help of mediators and/or your attorneys. If you are unable to agree, the court will intervene and impose a schedule (and one of the parents is likely to be unhappy with the court's parenting plan).
Q. What can a Father expect if he is not awarded custody of the children?
A. That depends. If you and your spouse can agree to a Parenting Plan and a Visitation Schedule, it can be anything reasonable. If you can't agree, you can expect alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer. Massachusetts divorce laws specify that having both parents in a child's life is the preferable scenario.
Q. Can the visitation schedule be changed after a Massachusetts divorce is finalized?
A. Yes, two choices here. You can privately change the details of your parenting plan with your spouse, or either of you can petition the court for a modification. Typically modifications are granted when conditions or situations change significantly. So get your spouse to agree, or take he/she back to court. Put any adjustments between you two in writing.
Q. Any suggestions before we go into negotiations?
A. Yes. First, try to get your spouse to agree to as much as you can on these four documents: Custody Agreement, Custody Schedule, Parenting Plan and Visitation Schedule. If that isn't going to happen, speak with your attorney about getting verbiage into the agreement that addresses the details of visitation, such as who picks up and drops of the child, where it will happen, what will occur if someone is late, exchanging weekends with the other parent, what to do if another partner comes on the scene and how much or what type of exposure to your child is appropriate. This would include if your ex has a romantic partner stay overnight with the child visiting. The more you get in writing, the less disagreement later. Make sure there is a radius clause preventing the custodial parent from moving more than a pre-determined amount of miles, such as 50 or 75.
Q. What are the grounds for divorce in Massachusetts. Can we divorce using irreconcilable differences?
A. Yes, Massachusetts allows for Fault and No-Fault grounds for divorce.
No Fault based grounds for divorce are "Irretrievable breakdown of the marriage".
Fault based grounds for divorce:
- Desertion for 1 year,
- Habitual drunkenness,
- Drug addiction,
- 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.
[Massachusetts General Laws - Chapter 208 - Sections: 1, 1A, 1B and 2]
Q. In order to file for a divorce, how long will I have needed to live here? Specifically, what are the residency requirements?
A. One must have lived in the state for at least one year prior to the filing. If the cause of the divorce occurred in Massachusetts, at least one of the parties must have been a Massachusetts resident.
Q. We just moved to this state, and it looks like the marriage isn't going to last-we're headed to divorce. Can we divorce here now in Massachusetts, do we have to wait to establish residency, or should we return back to Ohio to divorce.
A. You'll need to be in Massachusetts for a year to use Massachusetts divorce laws to end your marriage. You could return to Ohio, but our guess is that would be too burdensome. You can file now, and by the time it goes through its process, you'll be able to apply state laws for a dissolution.
[Massachusetts General Laws - Chapter 208 - Sections: 4,5 & 6]
Q. Is there any type of waiting period after my divorce is final before I can get married again?
A. State laws specify that divorces will not be issued (decreed) before six months have passed since the original filing. As far as any waiting period after your divorce, there are no restrictions against remarriage following a divorce decree.
Q. How does mediation (or marriage counseling) play out in the divorce process in Massachusetts?
A. If the court determines that there is potential for agreement using mediation or counseling, it will order the parties to do so, especially if a divorce can be avoided. The court can, at any time prior to the decree, require that the parties submit themselves to mediation or counseling. When the parties file for divorce under the no-fault provisions of irretrievable breakdown of the marriage, the court may at any time (also prior to the decree) issuance of the judgment of divorce require the parties to participate in family or marriage counseling.
Q. Do grandparents have any right to see their grandchildren?
A. Courts will entertain visitation petitions from grandparents if the court believes such visitation is in the best interest of the children.
Grandparents can be successful petitioning for visitation if:
- the child's parents have separated or divorced
- a parent is deceased
- the child has been born out of wedlock AND paternity has been established for paternal grandparents (maternal grandparents are exempted from this requirement)
Adoption terminates grandparents visitation rights unless the child is adopted by the step-parent
A Word On Your Journey Toward Healing And Recovery ...
At some point in the process, you will likely discover that you will not be able to manage the divorce recovery all by yourself. If you are a man, you are apt to bury the hurt and anguish and force yourself to Move On. However, unresolved feelings are just that- unresolved, and are likely to become issues later on. If you are a woman, you will feel the process more, and likely will experience a feeling of loss while feeling lost. We recommend you spend time discovering why things worked out as they did, so that you grow with the new knowledge. We offer a myriad of tools that can get you to the other side. The more you learn, the less you fear. Trust us on this. Spend some time and a few bucks and the return will be ten-fold.