There Is No Winning In Divorce

By:  Attorney Jeni Landers, Esquire

Although I do help clients during some very happy moments in their lives such as purchasing a home or starting a new business, much of my work is of course helping people get through very difficult times such as divorce, injury, and deaths of family members.  Sometimes just having information and getting a sense of where they stand can help people feel stronger and certainly more prepared to take the next steps.

Disclaimer:  This post is meant to give you some general information about the divorce process in Massachusetts.  It is NOT all inclusive and is NOT meant to be a step-by-step guide for a DIY divorce.  The laws on divorce, custody, alimony, and property division are complex and you should retain counsel if possible.  By providing you this information I am not in any way undertaking representation of you, creating an attorney-client relationship with you, providing you with specific advice on your situation, or guaranteeing you any particular result in a divorce action. You may not rely on nor cite this blog post in any action for divorce.

Divorce actions come in all shapes and sizes and the first thing to remember is that there’s no “winning” in a divorce.  Divorces are handled in the Probate and Family Court here in Massachusetts and generally you would file for divorce in the county in which you live.  A divorce action is meant to resolve all the issues between the parties including but not limited to child custody (legal and physical) and support, parenting time (aka visitation), alimony, asset and debt division, health insurance, life insurance, and taxes.  When making decisions that affect children, the court using the “best interest of the child” standard which is extremely fact specific and may create what appears to be opposite results sometimes; each case is different.  The standard for property division is “equitable distribution.”  Remember, equitable doesn’t mean EQUAL.  The distribution is fact specific and based on multiple factors to be discussed another day.

There are basically two ways to get divorced in Massachusetts.  The first is referred to as a 1A (Mass General Laws c. 208, § 1 A) or “uncontested” divorce.  In an uncontested divorce the parties file a joint petition for divorce and a “Separation Agreement” that they have negotiated and drafted either themselves or with help from an attorney or mediator.  If there are minor children involved, each party must also attend a parenting class and present the certificate of completion to the court.  The court will also require additional documents including but not limited to a financial statement completed by each party (under oath), a certified copy of the marriage certificate, and affidavits from both parties that the marriage is “irretrievably broken” and cannot be fixed. 

The Separation Agreement should resolve all issues between the parties including custody, support, property division, etc.  Once the Court has all the required documents, a hearing will be scheduled. Both parties must appear (with or without counsel) unless a party files an affidavit in lieu of appearance. At that hearing the parties are sworn in, the Judge asks each party questions about the Separation Agreement and the financial statements, and if there are no outstanding issues or problems with the Agreement, the Judge orders the divorce.  Although this is meant to be a “final” outcome, decisions relating to children (and possibly other issues depending on how the agreement is drafted) are modifiable by the court upon the filing of a Complaint for Modification by either party in the future.

The other type of divorce is a 1B or “contested” divorce.  This type of divorce action resembles traditional litigation.  One party files a petition for divorce which can be based on a variety of grounds, including the very general “irretrievable breakdown.”  That party then becomes the Plaintiff and serves a summons and copy of the petition (or “Complaint”) on the other party.  The second party becomes known as the Defendant and must file an “Answer” to that Complaint.  Unless one or both parties file motions for temporary orders (such as asking for a certain custody arrangement pending the trial), the first time the parties go to court is the Pretrial Conference.  Prior to that conference, the parties must, among other things, exchange certain financial documentation, complete their financial statements, meet (with or without counsel) to try to resolve the issues, and draft Pretrial Memorandum to be submitted to the court. At the Pretrial Conference the Judge will listen to the parties (or their attorneys) and usually then schedule the trial.  Sometimes the case will need another Pretrial Conference.  And occasionally the Judge hears enough (in cases with limited issues) to decide the issues and order the divorce that day.

A divorce trial is like any other trial and involves substantial preparation, the calling of witnesses to testify, the submission of exhibits and other evidence to the court, and opening and closing statements.  Some people represent themselves, but it can be very difficult to do so since “pro se” (self-representing) parties are still expected to follow the rules of evidence and procedure.  After the trial the Judge will issue a decision on all of the issues including custody, support, property division, etc.  As with a 1A divorce, decisions made by the Judge that affect children are later modifiable based on a change in circumstance.

To further confuse matters, sometimes you start working on a separation agreement with the hopes of filing a 1A/uncontested divorce, but negotiations break down and you end up heading to a trial.  On the other hand, sometimes one party files a 1B/contested divorce and it looks like you’re headed for a trial, but you’re able to negotiate an agreement on your own or through your attorneys and you can present that agreement to the court and avoid a trial.

What I’ve just described are typical scenarios, but cases often take different and more complicated directions based on the issues.  Most days in Barnstable Probate Court there is a “Lawyer of the Day” who can provide you with free, limited advice.  If neither party has an attorney, the Judge will most likely send the parties to speak with someone in Family Services/Probation to see if an agreement can be reached on all or some of the issues.  There is also a law library in Barnstable District Court and the librarians can direct you to useful information on divorce.

<<<<<<<<<>>>>>>>>>>
Jeni A. Landers, Esquire
Wynn & Wynn, P.C.
300  Barnstable Rd.
Hyannis, MA 02601
508-775-3665
Fax 508-775-1244
www.wynnandwynn.com

---