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Massachusetts Divorce Resources

From the Law Office of Robert P. Murray

©2004 ALL RIGHTS RESERVED
Robert P. Murray, Esquire


Fault Divorce
No-Fault Divorce with an Agreement
No-Fault Divorce Without an Agreement

Part II: Differences in Procedures

FAULT DIVORCE: As stated in Part I, under this type of divorce action, one party to the marriage blames the other for the marital breakup and files a Complaint against the other. The Complaint is a form which states a.) Who the parties are; b.) Where they reside; c.) When and where they were married; d.) Names and ages of children; and e.) The basis for the “fault” in the marital breakup. Today, most fault divorces are founded upon “cruel and abusive” treatment. Cruel and abusive treatment does not have to include physical abuse, although it frequently does, but can consist only of mental cruelty where one party has verbally abused the other to such a degree as to negatively affect the other’s health. This is usually exhibited by the Plaintiff’s not being able to sleep, gaining/losing weight, inability to concentrate, interference with their being able to perform their usual occupation, etc. In those instances, it is the emotional destruction of the innocent spouse which forms the basis for a Complaint for divorce due to cruel and abusive treatment.

The party filing the Complaint is the “Plaintiff” and the other spouse is the “Defendant.” Once the Complaint has been filed in the appropriate Probate and Family Court, the other spouse needs to be formerly notified of the pending divorce action. This is accomplished by serving a copy of the Complaint, together with a Summons, on the other spouse. The Summons acts as a cover letter, advising the spouse that he or she has 20-days from the date of service to file his or her answer to the Complaint with the Court and to send a copy of the answer to the Plaintiff or, if the Plaintiff has an attorney, to the Plaintiff’s attorney.

Unlike other types of civil actions whereby the Plaintiff may “win by default” if the Defendant doesn’t file his or her answer within the 20-day period, no one “wins by default” in a divorce action. If no answer is filed, the case may be considered “uncontested,” and the Plaintiff can then request a final hearing with the Court, which hearing will be scheduled by the Court as soon as the Court has a date available. If the Defendant does file an answer, with or without the assistance of an attorney, the case will be considered “contested.” Contested matters usually aren’t scheduled for final hearing until the parties, and/or their respective lawyers, have had ample opportunity to negotiate a divorce settlement. As a result, there may be considerable time between the time of the initial filing of the Complaint and the date of hearing. In many counties, it may take several months for the Court to be able to schedule the hearing.

In the interim, it may be necessary to obtain Temporary Orders establishing issues of custody, support, visitation, etc. pending the final hearing. If necessary, these can usually be scheduled quite quickly after the initial filing of the Complaint.

At the time of the final hearing, all marital issues which have not been resolved by agreement between the parties, will be decided by the Judge. At that time, or within a short time thereafter, the Judge will enter a decree of Divorce Nisi — which means that the parties are divorced, but that it is not final and absolute quite yet. The Decree Nisi will ripen into a Decree Absolute 90-days later. Only at that time will either party be free to re-marry someone else. No one has to go back to Court at the end of the 90-days; the Decree Absolute enters due to the mere passage of the 90- day period.

Contested, fault divorces are rarely challenged on the divorce itself, but are usually fought over various marital issues: custody, support, division of marital assets, liability for debts, etc. During the pendency of the divorce action, either party may engage in “DISCOVERY.”

NO-FAULT DIVORCE WITH AN AGREEMENT: Usually, before anything has been filed in a Probate and Family Court, both parties have arrived at a mutual understanding that, for a variety of circumstances, the marriage is effectively over, neither party wishes to blame the other for this breakdown, and they have entered into a formal Divorce Agreement. Instead of a Complaint for Divorce being filed, a Joint Petition is used, signed by the parties and/or their attorneys. As a result, there is no necessity of having anyone served with a copy or with a Summons. Once the formal Agreement has been reached, it is reduced to writing, signed by both parties, and notarized before a Notary Public. The Joint Petition, together with the Agreement, and a Supporting Affidavit of Irretrievable Breakdown of the Marriage (along with the marriage certificate and other related documents) are all filed with the Probate and Family Court.

Shortly thereafter, a hearing is scheduled by the Court (usually within 45-days). At the time of the hearing, the Judge will review the Joint Petition and the Agreement, to be sure that it is fair and reasonable and that it makes proper provision for the care, custody and support of any minor children, etc. The Judge then will usually ask the parties several basic questions: are they certain the marriage is irretrievably broken, have they read and understood the Agreement, have they signed it freely and voluntarily, have they had an opportunity to review it with an attorney, etc. If the Judge is satisfied, he or she will the enter 1.) A Finding that there is an Irretrievable Breakdown of the Marriage; and 2.) An Order that the parties comply with the terms of the Agreement. Note that no Decree of Divorce enters at this time, however. Without the necessity of having to go back to Court, 30-days later a Decree of Divorce Nisi will enter (copies will be mailed out by the Court), and 90-days later a Judgment of Divorce Absolute enters on the Court’s records. Again, it is only after this 90-day period (a total of 120 days from the day the parties were in Court) that either party is free to re-marry someone else.

NO-FAULT DIVORCE WITHOUT AN AGREEMENT: Again, in this type of divorce action one of the parties has determined that the marriage is, for all intents and purposes, over. However, he or she does not have sufficient grounds for a fault divorce or, even if he or she does have grounds, he or she does not wish to blame the other. The procedures involved here are somewhat similar to a Fault Divorce (see above), and a Complaint is necessary to be filed. No blame is placed upon the Defendant, but rather, the Plaintiff simply states that he or she has determined that an irretrievable breakdown of the marriage has occurred. Again, often during the pendency of this type of divorce action, the parties are able to negotiate a mutually acceptable Agreement and, if so, the case may be converted to a No-Fault Divorce with an Agreement, and will proceed on that basis. Again, the other spouse must be served with a copy of the Complaint and a Summons.

A significant feature of this type of divorce is, however, that no final hearing can be held until 6- months AFTER the Complaint was filed. Effectively, the 20-day period in which the Defendant has to file an answer, is meaningless. He or she will usually be permitted to file an answer at any time prior to the final hearing which, again, cannot be held until 6-months have passed. Temporary Orders may be necessary in the meanwhile, to establish temporary custody of children, etc.

At the time of the final hearing, the Judge will hear testimony and accept evidence regarding the disputed issues. Following the hearing, the Judge will make his or her decisions, and enter the Decree Nisi immediately thereafter. Again, however, there is still a 90-day waiting period following the entry of the Decree Nisi before the divorce is final and absolute.

Which of the three procedures described above depends upon the parties themselves, the facts of the case, and the circumstances surrounding the marriage. Naturally, if a case is “uncontested” it may proceed rather quickly (except for the 6-month waiting period described above). On the other hand, contested matters can drag on for months and, in some instances, years. It is always an attorney’s obligation to assist the Court in expediting these matters, or at least to streamline the case, by attempting thorough negotiations. In that way, certain of the disputed issues might get resolved, and the disputed issues can be narrowed so that a trial might only involve those issues. For the most part, how well the parties can communicate with each other will drive the time table on a divorce action. Parties who fight like cats and dogs may never reach agreement on any issues (and in those cases, the attorneys probably haven’t done a good job) and their cases will drag on. In the interests of both parties and their children, it is best (and usually cheaper) to negotiate, communicate, negotiate, and communicate.