The Divorce Process
1. Where do I file for divorce?
You may file a divorce in Massachusetts:
- if you have lived here for a year, or
- if the conduct that is the reason for divorce occurred in Massachusetts and you lived as a married couple in Massachusetts, regardless of where your spouse now lives, or even if his/her address is unknown.
- You file a divorce in the Massachusetts Probate and Family Court in the county where you and your spouse last lived together if either of you still lives in that county. If neither of you lives in the county where you last lived together, you may file in the county where you live, or you may file in the county where your spouse lives.
2. How do I start the divorce process?
You file the Complaint for Divorce and other documents at the court. If there is an Affidavit of Indigency, the clerk will approve it and stamp it, and give you a copy. You will also get a Domestic Relations Summons. Arrange for the sheriff to give a copy of the complaint to the spouse. When the sheriff does this, it is called "service of process," meaning that the sheriff has served the papers to the spouse.
Before trial, either party may request that the court make temporary orders, for example concerning custody, child support, or visitation. Either party must request a pre-trial conference, and then there is a final hearing, the trial.
3. When should I go to court?
Going to court too quickly can often create more litigation. In making your decision to live apart, to divorce or to contest certain issues, weigh the price you will pay with your time, emotional pain and money.
Each case is unique. When children are involved, your relationship with your spouse does not end with the separation or divorce. You probably, but not necessarily, will continue to have contact with him/her regarding support, visitation, and other parental responsibilities. You both will be grandparents of your children's children. If it is appropriate in your situation, for the sake of your children, keep the lines of communication open, but only if it is safe to do so. If possible, put your children's welfare ahead of continuing conflicts.
4. Can I keep my address a secret?
Yes, if you need to keep your address a secret from your spouse, you can file a motion asking that the court impound your address. If there has been abuse, you will need to tell the court why it is necessary that your abuser not learn your address.
5. Once I file with the court, how long is it before I get a trial date?
Each case is unique and the answer to this question depends on many factors such as:
- which grounds you are using;
- how rapidly or slowly you are able to complete each step in the process;
- how long it takes to find and serve your spouse;
- if your spouse's address is unknown, serving him/her will take longer;
- how complete and accurate your papers are;
- how busy and back logged the court is;
- whether your spouse contests or disagrees any part of the divorce; and
- whether there are temporary orders or negotiations in process.
There is generally a twenty day waiting period after the defendant has been given copies of the divorce papers before either party can request a pre-trial or trial. (This period is six months for no-fault divorces where you file alone.) If you do not know where your spouse lives or works, you must still give "notice" of the pending divorce, but since you cannot locate him/her, you will serve him/her by an alternate method such as service by publication in the newspaper and mailing notice to his/her last known address. There is no hard and fast rule as to how long it takes to complete the process and be granted a final divorce judgment.
6. How much will my divorce cost?
There is a fee to file a divorce, and to get a summons. As of 2004, the filing fee is $200.00, plus a $15.00 surcharge, and a summons costs $1.00. Notifying your spouse, called service of process, can cost around $30.00 or more if he/she lives far away. (See question 7)
7. I cannot afford the fee, can I still file for divorce?
Yes, if you receive public assistance or your income is less than 125% of the federal poverty level, or you can show that paying the filing fee would keep you from buying necessary food, shelter or clothing, you may file an Affidavit of Indigency. The court may waive the filing fee and you will not have to pay the costs for "service of process."
8. Can my spouse be made to pay any part of the fees?
Sometimes. The court can require your spouse to pay attorney's fees for you, if your attorney can show that the legal work needs to be done and your spouse can afford to pay for it.
9. What about help from legal services?
Your local legal services program may be able to provide you with free assistance.
10. I am not eligible for legal services and I need a lawyer. What then?
If money is a concern for you, do not hesitate to tell the attorney right from the start. Consider hiring a private bar attorney to handle your case with little to no retainer. In certain cases, an attorney can seek attorney's fees from your spouse. Keep in mind that your attorney charges by the hour so the less time it takes her to gather information the less it will cost you. Whenever possible, offer to get needed information or documents. Keep your own file. Be prepared for meetings or telephone conversations with your attorney. If your attorney told you she would need certain information, have it ready for her. All these steps will help to keep the costs down.
11. Can I do my own divorce?
Under Massachusetts law you have the right to appear on your own behalf in a courtroom in any legal matter including divorce. However, proceeding "pro se" (literally, "for yourself") in getting your divorce is advisable only under certain circumstances.
12. Should I represent myself?
The ideal pro se divorce situation is one in which you and your spouse have no disputes regarding any issue, neither the grounds for divorce nor the custody and support arrangements (if applicable). It is particularly appropriate to proceed pro se in cases where you and your spouse have been separated for some time and you are sure that he/she will not challenge the divorce.
13. Can someone help me represent myself?
Yes. Some women's centers and legal services' offices offer a "do it yourself" divorce clinic to guide eligible participants in doing their own divorce. There are Divorce Handbooks available that give information about divorce terms and the process for obtaining a divorce with or without a lawyer. Your local library or county law library has a family law section.
14. What if the case gets complicated?
If you and your spouse have custody disputes, if you are married and paternity of any of the children is in question, if you want support (alimony) from him/her or if there is any marital property which hasn't already been satisfactorily divided, you are advised to hire an attorney to represent you. If the case is complicated, you do not know how to proceed, or you are unsure how to proceed, consult an attorney to protect your interests.
Used with Permission and adapted from Neighborhood Legal Services, Inc. www.neighborhoodlaw.org
This information is general legal information that may or may not pertain to your particular circumstance. It does not substitute for a consultation with an attorney regarding your specific situation.
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This content was last modified on: 08/25/2008