Divorce - Frequently Asked Questions

Separation, divorce, and determination of child custody are some of life’s most difficult, heart-wrenching experiences. As family law attorneys, we understand the sensitivity and strong emotions that surround these issues. We work with our clients to ensure not only the best outcome for them and their families, but also to be a source of comfort and knowledge in the most treacherous of times.

We hope that the following questions and answers will assist you and ease your mind in regards to the many legal questions you may have. If you have further questions, please don’t hesitate to contact us:

Renee M. Hawk
(617) 531-6570
rmh@barronstad.com

Donald L. Pitman
(617) 531-6597
dp@barronstad.com

SEPARATIONS, PRENUPTUAL AGREEMENTS & RESTRAINING ORDERS

I don’t want a divorce, but I want to be separated. Can I do that, legally?
Yes, you can. You will need to file a “Complaint for Separate Support” document whereby you can arrange your affairs just as you would in a divorce but remained legally married, including obtaining child support, dividing your assets, guaranteeing health insurance coverage, setting up visitation schedules and even allocating college expenses, just as can be done in a divorce. However, should one party then file for and obtain a divorce, anything agreed upon or set out in the separation agreement based on a Complaint for Separate Support would be nullified.

My spouse filed for divorce, but I don’t want a divorce. Can I stop him/her?
No. Either party in a divorce has a right to obtain one if they want to. In fact, a party may obtain a divorce on nearly any grounds, so long as there has been an irretrievable breakdown of the marriage and there is no hope of reconciliation.

We signed a pre-nuptial agreement. How will that work?
A pre-nuptial agreement governs what will happen in a divorce, provided the Court deems it is reasonable both when drafted and when it is exercised. Generally. An example of a pre-nup that may be not considered reasonable is where the couple agreed to waive alimony, however the marriage is long-term and one spouse earned significantly more than the other spouse over the course of the marriage.

For more information on pre-nuptial agreements, please read this article: http://www.barronstad.com/res_040.htm

When and how do I get a restraining order?
You can get a restraining order anytime you are in imminent fear of your physical safety or the physical safety of your children. To get the restraining order, during business hours you should call your local district court. If it is after business hours, you should call your local police department. You will then fill out the paperwork explaining why you think you need a restraining order. This procedure applies if the person you want to obtain a restraining order against is a spouse, boyfriend or girlfriend, or individual residing in the family home.

I just got a restraining order served on me. What do I do?
First, leave the house immediately. Stay away from the house and do not contact the people who have the restraining order against you, and, if you have children, you should not contact them if they are included in the order. In order to retrieve your personal possessions, you should call the police in the town where they are and have them come with you. You will also be asked to turn any firearms you own in to the local police station.

Within ten days, there will be a hearing scheduled regarding the restraining order. At this hearing, you can present your side of the case, and a judge will decide if the restraining order will remain in place or not. You should have an attorney present at this hearing. If you do not go to that hearing, the restraining order will be extended for up to one year, and can be renewed after that.

FILING FOR DIVORCE

What are the reasons I could file for divorce?
There are two basic grounds for divorce: (1) fault-based grounds and (2) no-fault-based grounds.

Under fault-based grounds, there are seven areas to consider:

• Adultery
• Cruel and Abusive Treatment
• Gross and Confirmed Habits of Intoxication (includes alcohol and drugs)
• Gross or Wanton and Cruel Refusal or Neglect to Provide Suitable Support
• Impotency
• Sentence or Confinement in Prison
• Utter Desertion (must be deserted for at least one year)

A no-fault divorce is when “an irretrievable breakdown in the marriage” has occurred and there is no hope for reconciliation. Simply put, one person in the marriage no longer wants to remain married, and is looking to end the marriage.

Do I need to live in Massachusetts to file for divorce in Massachusetts?
One of the spouses must be a resident of Massachusetts. If the grounds for divorce occurred in Massachusetts (i.e. the parties lived together in Massachusetts and the breakdown of the marriage occurred while living together in Massachusetts) and so long as one party still lives in Massachusetts, there is no time requirement when filing for divorce. However, if the grounds for divorce occurred outside of Massachusetts, then one of the spouses must be a resident of Massachusetts for at least one year before filing for divorce.

We aren’t legally married, but have been living as a married couple for some time. We are separating. What do I do?
Unfortunately, the protections that exist for a married couple do not apply to you since you are not formally married. Unlike some states, there is no such thing as “Common Law Marriage” in Massachusetts, and, therefore, the courts do not have the ability to regulate your affairs. Neither person can receive alimony benefits and the Court can not assist you in dividing your assets. If you have children, the Court can order child support be paid as part of a paternity case.

If I leave the house, will it be considered abandonment? Will I lose the house?
No, you will not. All of a couple’s assets, including the home where you live, will be divided based on certain factors set out by law. The way the property gets divided does not consider whether you leave the house and it is not considered “abandonment”. In fact, some courts look favorably upon a spouse who leaves the marital home in order to defuse the tension between the parties.

Where do I file for divorce?
You or your attorney will file for divorce in the Probate Court in the county where the person filing for the divorce resides.

What documents will I need to file for divorce?
You will need a certified copy of your marriage certificate. You can get this either from the local town hall that issued your marriage certificate or from the Registry of Vital Records and Statistics in Dorchester, MA.

How do I protect my assets once I file for divorce?
An automatic restraining order will be placed on your assets. This means that neither person can use the assets for anything beyond their normal living expenses. For example, if a spouse decided to go on a $200,000 shopping spree (and that was not normal for him/her), s/he could be ordered in the divorce to repay that money, or the assets may be divided with that in mind.

CHILDREN, CUSTODY & CHILD SUPPORT

What will happen to me and my children while the divorce is pending?
A series of Temporary Orders will be issued by the Court; either you and your spouse can agree to them or the Court can make the appropriate orders after a hearing. The Temporary Orders provide for the maintenance of both parties while the divorce is pending. It can cover what will happen with the children, who will reside in and pay for the family home, who will provide health insurance, child and spousal support, and custody until the divorce is finalized.

What does it mean to have “custody” of my children?
There are two types of custody - (1) legal custody and (2) physical custody.

1. Legal custody refers to who will make the medical, educational and religious decisions on behalf of the children. Legal custody is usually shared unless one parent is found to be unfit.
2. Physical custody refers to who will spend the majority of time with the children and, just as importantly, who will be receiving (and paying) child support.

We both want physical custody of our children. How does a judge decide who will get custody?
A judge will look at your children’s history and decide who has been the primary caretaker - who has taken them to doctor’s appointments, who has gone to school conferences, and what the parties’ basic pattern was during the marriage to determine who the primary custodian should be. Most importantly, the judge will determine what is in the best interest of the child.

Can we have joint physical custody?
Parties generally do not have an arrangement for joint physical custody because that is based on having a completely amicable relationship when it comes to the children. Unless the Court sees proof that both parents are committed to spending equal time and have equal financial support for the children, a court may not approve an agreement that provides for joint physical custody.

Who pays child support and how is the amount determined?
The parent without custody (non-custodial parent) pays child support to the parent with custody (custodial parent). The amount is determined by a formula set forth by the Massachusetts government - the Massachusetts Child Support Guidelines.

How often is child support paid?
The parties can decide when it should be paid. Generally, it is based on the non-custodial parent’s pay period.

What if I am concerned that the non-custodial parent will not make payments regularly?
You can have the Court enter a wage assignment through the Department of Revenue. This provides a method for the non-custodial parent’s employer to pay the support directly, taking money from his or her paycheck and paying it to the Department of Revenue, which sends it to the custodial parent. While this is a complex administrative process to go through, the benefits are that if the non-custodial parent continues not to pay, the Department of Revenue can freeze his/her bank accounts, take away his/her driver’s license, and seize his/her tax returns.

My child would like to testify during the divorce proceedings. Is that possible?
No, children under age 18 are not allowed to testify in divorce proceedings, regardless of the circumstances. The Court may appoint a Guardian Ad Litem to speak on their behalf.

What is a Guardian Ad Litem (G.A.L.)? Who pays for it?
A G.A.L. is sometimes appointed by the Court to represent a child’s interest in the divorce. Children are not permitted to testify in domestic matters between or against their parents, so a G.A.L. will speak for them in divorce proceedings. The G.A.L. will meet with parents, children and others involved in the child’s life to gain an understanding of their situation. The G.A.L. is either chosen by the parties or selected from a list by the judge and could be an attorney, physician, or social worker, among others.

The G.A.L. charges an hourly fee, which is usually divided by the two parents.

I did not receive a child support payment. What can I do about it?
You or your attorney can file a Complaint for Contempt with the Court. There will then be a hearing to determine how much money is owed to you. If the non-custodial parent does not have a valid reason for not paying, s/he can also be ordered to pay attorney fees. If the non-custodial parent is significantly behind on the payments, s/he can be sentenced to jail.

Can I refuse to pay child support?
No. If you do, you can be sentenced to jail.

Does my ex-spouse have to prove to me that s/he’s using the child support appropriately?
The custodial parent does not have to prove how s/he has used the money. Child support is intended to contribute to the lifestyle of your children. It is up to the parent with custody to determine how to use the money, as long as it contributes to the lifestyle of the children. For example, it could be used to pay for groceries, new clothing, sports gear, trips to the zoo, etc., but s/he does not have to account for these expenses.

What if I strongly suspect my child support payments are not at all being used towards the lifestyle of the children?
Child support does not have to used to pay for expenses directly related to the children. It can also be used to pay for the child’s housing, food, and utilities where he or she lives. If, however, you believe that the custodial spouse is neglecting your child, you may want to consider asking for a change in custody for the children.

I pay for my children’s health insurance. Does that count toward my child support?
It is a factor in determining the level of child support. You or your attorney may be able to request a modification to your child support.

My child is nearing 18, will my child support change when s/he is of legal age?
If your child is 18 and resides with the custodial parent and is financially dependent on the custodial parent or is enrolled in a full-time undergraduate program, you will continue making regular payments until the child is 21.

Do I have to contribute to college expenses?
Both parents are responsible for contributing to college expenses for children, and it can be determined by the judge if the parties cannot agree. If it has not yet been determined, you should discuss the particulars with an attorney.

How can my child support amount be changed?
In order for there to be a change in the amount of child support, there must be a substantial change in either parent’s circumstances that would warrant such a change. These include a big salary change (either up or down); the loss of a job, or if one of your children either reaches the age of 13 or becomes emancipated by the terms of your divorce agreement. In order for the amount to be changed, a Complaint for Modification must be filed by you or your attorney.

If I decide I no longer want to see my children or have any parental rights, do I still have to pay child support?
Yes. It is a crime to simply discontinue child support payments.

MARITAL ASSETS

My spouse has taken all of our money from our joint accounts. What do I do?
You or your attorney should file for divorce immediately (if you haven’t already). Your attorney should file an emergency motion to explain to the judge what has happened, that there is a strong likelihood your spouse will take the money and not return it, and why you need help. The judge can either order the money to be returned or set a date for a hearing where your spouse has to explain his or her actions.

How will the assets be divided in the divorce?
The division of assets can be very complicated. There are 18 criteria that are considered in distributing the marital assets. They are:

• Length of marriage
• Conduct of the parties during the marriage (e.g. adultery)
• Age of the parties
• Health of the parties
• Station of the parties (upper, middle, lower class)
• Occupations of the parties
• Amount and sources of income
• Vocational skills of the parties
• Employability of the parties
• Estates of the parties – what does each party have to rely on in the future?
• Liabilities of the parties
• Needs of the parties
• Current needs of minor children
• Future needs of minor children (e.g. college tuition)
• Opportunities available for future acquisition of capital
• Opportunities available for future acquisition of income
• Contributions in the acquisition, preservation or appreciation in value of your estates
• Contributions of Husband and Wife as homemaker

My spouse has a retirement plan. Is that something I can receive a portion of?
Yes. It is subject to division and based on the type of retirement plan in question, a Qualified Domestic Relations Order (QDRO) can be used to divide the retirement plan as part of an overall agreement for divorce and division of your property.

My spouse signed everything for our house and mortgage. Will I have any rights to it?
The home will be subject to division regardless of whose name it is in. By being married and not having a pre-nuptial agreement that controls the division of the assets before marriage, you have a “marital” share in the home. Therefore, you will have rights to it, just as your spouse would have rights to any property you may have.

My spouse may receive an inheritance. Will that be considered in the division of assets?
It may be considered in what you will receive in the divorce. By obtaining a “Vaughn Affidavit” you may review the estimated estate involved from other people to include as part of the division of your marital assets.

My spouse behaved terribly towards the end of our marriage (e.g. affairs, not coming home at night). How much will this conduct be considered?
Conduct is only one of eighteen factors (see above for all eighteen) considered, so conduct alone cannot control the decisions that will be made regarding your assets. Conduct may be considered in terms of improper use of marital assets (e.g. using joint funds for an affair) and if those assets will be returned. Depending on the behavior, it may be taken into consideration to determine who the custodial parent would be of the children or other terms as part of Temporary Orders.

Once the marital property has been divided, is it final or can it be changed via a Modification?
Once you enter into divorce, the division of assets is final. The only exception is if one party committed fraud, for example, hiding assets during the divorce process.

MEDICAL/DENTAL INSURANCE

Will my spouse continue to carry myself and children on his/her medical/dental insurance during and after divorce?
Usually, whomever has been carrying the insurance will be required to continue carrying the insurance during the divorce. Once the divorce is finalized, the parties will normally look to see which parent has the best plan for covering the children and the parties can switch, since divorce is normally considered a “qualifying event” under most health plans. The spouse who did not have health insurance can remain covered under most plans until the covered spouse remarries; at that point, some plans do provide for a rider for the non-covered spouse. There is some pending legislation that may affect this situation, so consulting with an attorney on this matter is very important.

Who will pay for the children’s health insurance?
Whoever was paying for the insurance will continue to carry it for the children. However, the spouse who provides health insurance will also either receive a credit or pay additional child support based on the cost of health insurance.

Who pays for the children’s uninsured medical expenses? Am I responsible for my spouse’s uninsured medical expenses? Is my spouse responsible for mine?
The parents usually share the cost of children’s expenses and assume their own expenses. If one person makes much more money, that can be considered in making an appropriate division of these expenses.

When can my spouse terminate my health insurance coverage?
In general, a spouse cannot stop health insurance coverage unless the coverage is no longer available to him for you. (For example, in the event of remarriage.) However, should that occur, most insurers will offer a rider to provide this coverage to the non-covered spouse.

If there is an extra expense to carry my spouse on my insurance, is s/he responsible for this expense?
This depends on what arrangements are made post-divorce. Generally, the spouse who does not have the coverage must pay for their own coverage, whether it be by offset to a support order or by paying for it directly.

LIFE INSURANCE

My spouse is currently named as the primary beneficiary on my life insurance. Can I change it right away?
If you have an obligation to pay child support or alimony, you must carry life insurance naming your ex-spouse as the beneficiary until you no longer have an obligation to pay child support or alimony. You cannot change the beneficiary while the divorce is pending.

ALIMONY

Am I entitled to alimony?
The question of whether or not someone is entitled to alimony is one that is subject to a judge’s discretion. Whether or not you will receive alimony is generally based on a number of different factors:

1. Length of the marriage;
2. Your need to receive alimony; and
3. Your ex-spouse’s ability to pay for alimony

What kinds of alimony are there?
There are three types:

1. Temporary: This type of alimony provides initial support while the disadvantaged spouse is getting back on his/her feet. Temporary support is most typical of short to mid-range marriages (approximately 0-10 years).
2. Rehabilitative: This type of alimony is used for a very specific purpose with a clear end date, for example, finishing a degree or re-entering the workforce.
3. Permanent: This type of alimony is given because the spouse receiving the alimony has had a significant investment in the marriage and the divorce will leave him/her at an economic disadvantage. Generally, permanent alimony is given for long-term marriages (approximately 13 years or more).

Before agreeing to any sort of alimony agreement, you should consult with an attorney to make sure your interests are protected on a short-term and long-term basis.

Can my ex-spouse ever decrease my alimony payments?
Yes. Presuming the agreement permits modification of alimony, the payments could change if there is a substantial change in circumstances, for example, retirement or loss of job.

Can alimony terminate?
Yes, presuming alimony is something that can be modified in your divorce agreement. Generally, alimony will terminate upon re-marriage of the receiving ex-spouse or death of the paying ex-spouse. In addition, it could also terminate if there was no need for it to be paid or the paying ex-spouse had no ability to pay it.

If you would like clarification on any of these questions, or have other family law questions, please don’t hesitate to contact us:

Renee M. Hawk
(617) 531-6570
rmh@barronstad.com

Donald L. Pitman
(617) 531-6597
dp@barronstad.com

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