SEPARATION AND DIVORCE
Which court do you go to?
Almost all divorce cases and other related family law matters are heard in the Probate and Family Court in the county where you or your spouse are living at the time you petition the Probate and Family Court for relief or in the county where you and your spouse last lived together.
How do you petition the Probate and Family Court for relief?
An action for divorce or for separate support is initiated by filing a Complaint For Divorce or Complaint For Separate Support in the Probate and Family Court. There is no requirement that you be living apart from your spouse prior to the filing of a divorce or separate support complaint. A complaint for divorce requests the Probate and Family Court to end the marriage itself by the granting of a divorce. A separate support complaint asks the Court to find that you are living apart from your spouse for a legally good reason and that the Court officially recognize your living separate and apart from your spouse.
What are the residency requirements in Massachusetts?
Massachusetts courts have jurisdiction to hear divorce actions in which the parties lived together as husband and wife in Massachusetts, the cause of action for divorce occurred in Massachusetts, or the parties lived together as husband and wife in Massachusetts and the cause of action occurred while at least one of the spouses was living in Massachusetts. Otherwise, the Massachusetts Probate and Family Courts can hear a divorce matter if the moving party has lived in Massachusetts for one year preceding the commencement of the divorce action (if the cause of action occurred outside the Commonwealth.) There are no residence requirements for the filing of a Separate Support Complaint provided you are living in Massachusetts at the time the complaint is filed.
What is the first step in Probate and Family Court?
Should you decide to petition the Probate and Family Court, your attorney will prepare either a divorce complaint or a separate support complaint on your behalf.
How quickly can the probate judge act for your benefit?
The Probate and Family Court has the power to make temporary Court orders on behalf of both the husband and the wife upon the filing of either a separate support complaint or a divorce complaint in that Court. Except in cases of emergency, the attorney is required to give your spouse at least three days notice that a motion will be heard in the Probate and Family Court on a specific day and at a specific time subject to the schedule of the Probate and Family Court.
Upon the giving of proper notice to your spouse, the following temporary orders can be made by the Probate and Family Court:
q Temporary custody of the minor children;
q Temporary restraining order which orders your spouse not to impose any restraint on your personal liberty,
q Ordering your spouse to vacate the home where you are living together;
q Temporary support of yourself and the minor children;
q Imposing a wage assignment on your spouse's pay in order to insure the payment of support;
q Granting visitation rights to that spouse who does not have physical custody of the minor children.
The Court may make other temporary orders at the request of the parties or on its own motion.
Service of a Divorce Complaint--What do you do if you receive notice that your spouse is going to appear in Probate and Family Court to request temporary orders?
If you receive notice that your spouse will appear in Probate and Family Court to request that temporary orders be made on a separate support complaint or a divorce complaint, you should consult an attorney immediately or appear in Court on the date set forth in the notice. This is a very important and crucial phase of the court proceedings. Assuming there has been proper notice, the order of the Probate and Family Court will be binding upon the parties. Your failure to abide by the Court orders may result in your being found guilty of contempt of the Probate and Family Court even if you did not attend the hearing.
What happens after the granting of temporary orders?
After the hearing before a Probate Judge and the granting of temporary orders, there are various pre-trial information-gathering procedures that must be undertaken before a hearing. At the trial, after all of the witnesses have testified and the evidence has been presented to the Court, Judge will enter a judgment. The judgment may also contain final orders with respect to support obligations, custody of minor children, visitation rights and other financial matters. These orders may be modified at a later date by the Probate and Family Court upon the filing of a complaint for modification of the judgment.
What are the grounds for divorce in the Commonwealth of Massachusetts?
Irretrievable Breakdown of the Marriage
This is the "no-fault" concept. The benefits resulting from the use of this ground for divorce is essentially that neither the husband or the wife is required to allege fault or blame the other spouse for the breakdown of the marriage. The Court also does not require either spouse to give testimony to prove the other spouse at fault for the breakdown of the marriage.
Cruel and Abusive Treatment
The granting of a divorce on this ground does not require proof of physical violence by one spouse upon the other. This ground is broad enough to include mere words, if they create a reasonable fear of personal violence, or tend to wound the feelings to such a degree as to affect the health of the party or create a reasonable apprehension that it may be affected.
This ground of divorce requires that you show that your spouse, although able to support the family, did grossly, wantonly and cruelly refuse and neglect to provide suitable support for you.
Utter Desertion for at Least One Year
Gross and Confirmed Habits of Intoxication by Liquor or Drugs
Prison Sentence for Five Years or More
Do you need a witness?
In most cases, you will not need a witness. Your attorney will advise you; however, it is up to the judge to decide whether or not you need a witness to support your testimony.
How long does the divorce take?
If you and your spouse agree on all issues, you may be able to receive a court date within a month or so of the filing of all necessary papers. If any issues are contested, a divorce can take up to a year or more.
When is the divorce judgment final?
If the Court sees fit to grant a judgment of divorce after the trial, the marriage will legally end 90 days from that date. If the parties have filed a joint petition for divorce, the divorce will be final four months from the date of the final hearing. After this period is over, the parties are free to remarry and otherwise act as single persons.
GUARDIANS AND CONSERVATORS
Guardians and conservators are persons appointed by the Probate Court. The individual for whom they are appointed is called a ward.
A guardian is appointed for a ward when the Probate Court determines that one of the following circumstances exists:
q the ward is a minor (less than 18 years old);
q the ward is mentally ill, as evidenced by the opinion of a qualified physician;
q the ward is mentally retarded, as evidenced by the opinion of a qualified clinical team;
q the ward suffers from physical incapacity or illness;
q the ward, because of excessive drinking, gambling and the like, wastes or lessens his estate, commonly called a "spendthrift."
In each of the foregoing situations, except in the case of minors, it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his personal and financial affairs.
A conservator is appointed for a ward when the Probate Court determines that one of the following circumstances exists:
q the ward suffers from mental weakness;
q the ward is mentally retarded;
q the ward suffers from physical incapacity.
In each of the foregoing situations it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his personal and financial affairs.
What are the duties of a guardian and a conservator?
Guardians and conservators have many duties in common and are subject to supervision of the Probate Court. Some of these duties are set forth below. The list is not complete, but rather a general indication of the scope of duties.
q Pay the ward's debts
q Represent the ward in all lawsuits
q Control and manage the ward's property
q Invest the ward's funds
q Collect funds due the ward
q Support the ward and his family from the ward's funds
q Sell, lease or mortgage the ward's property, with the approval of the Probate Court.
A guardian, unlike a conservator, has custody of the person of his ward. Also, a guardian must consent to such matters as medical treatment and where the ward will reside.
Who may be a guardian or conservator?
The law gives no preference to any particular class of persons or relatives. Any person who is proper and fit is eligible. The paramount consideration of the Probate Court is the welfare of the ward and the appropriateness of the appointment to meet the ward's needs.
Fees of a guardian or conservator
The reasonableness of fees is ultimately determined by the court. A court usually will take into account the size of the estate, the responsibilities placed upon the guardian or conservator and the amount of work involved. Corporate guardians and conservators, such as banks and trust companies, base their fees upon a percentage of income and principal each year. Banks publish fee schedules, which are available to the public.
The lawyer's role
Acting as a guardian or conservator requires a knowledge of the law and its application. A lawyer can be helpful in many ways. He or she will assist in having the guardian or conservator appointed in the preparation of the documents required to manage the ward's estate, in choosing accountants and other useful professionals and in reviewing their performance in order to insure that their duties are being properly carried out.