The Court Process
Although each Massachusetts Probate and Family Court may have different rules, the basic procedures governing the court process is similar. Some counties may require an extra step or call a form a different name, but the basis in the law is the same. You should first learn the chronology of a divorce action. From there, learn the overall process.
1. Contested or Uncontested? You can determine how long and complicated your divorce will be if you know ahead of time if your divorce will be contested or uncontested. If you and your spouse agree to divorce, you’ll likely work together to learn the truth about divorce finances and work out the issues related to the children. If you and your spouse cannot agree, you’re leaving your future to be decided by a judge.
2. Filing for Divorce. The actual divorce process begins when one or both spouses file for divorce. Here, you are asking the court for dissolution of your marriage. If it’s a contested divorce, you must always file and serve the complaint.
3. Preliminary Motions. Because the divorce process can often take more than a year, you need to file motions (requests) for temporary orders so that the court can establish the status quo. Who will live where? How much support will be paid, and to whom?
4. Discovery. After the immediate matters are decided, your lawyer and your spouse’s lawyer will begin the discovery process in order to find out relevant information about the other spouse.
5. Assets and Debts. All marital assets – houses, cars, boats, professional licenses, rental property, retirement accounts, etc. – will be evaluated. The goal is to figure out exactly what each spouse owns and what these are worth at current prices. Furthermore, discovery also involves issues relating to the debts of both spouses.
6. Evaluation of Children and Parents. Unless the parties can agree, when the two spouses in a divorce cannot agree on issues relating to custody, there may be an order by the court for a custodial evaluation.
7. Negotiations. The settlement divides the couple’s assets and debts and deals with child-related issues. Parties either settle their differences or the matter goes to trial.
8. Pretrial Hearings. Just as it sounds, this is a hearing just prior to trial. In most cases, the judge will meet with the parties and ask about those issues that have yet been settled. In many cases, the judge will try to mediate the final issues with the couple. There is significant pressure to settle because of the expense, length and emotional cost of trial.
9. Trial. If you and your spouse cannot come to an agreement about the division of your property and custody of your children, you will both have to go to court and go through the cost and procedures of a trial.
Discovery Process
Before your case can be settled or go to court, you will need to go through the process of discovery. Working through your attorneys, you and your spouse exchange details and information important to the case.
How does discovery work? It’s like a scavenger hunt. Your lawyer will receive a list from your spouse’s attorney, setting out all the information that the lawyer wants – bank statements, credit card statements, cancelled checks, loan applications, deeds, wills, names of anyone with whom you own property, etc.
What if you don’t have the materials requested? You could end-up before a judge, with your spouse’s lawyer claiming you are hiding information and your lawyer explaining that you no longer have it. A judge will then rule for or against you.
Discovery is not limited to the production of written materials. You could also be deposed – obligated to answer questions under oath in front of a stenographer, your spouse and their lawyer. You could be served with extensive written questions, which you are obligated to answer truthfully.
Discovery could include a physical examination by a doctor, a blood test or even some level of a psychological examination.
A judge will not be happy if there is a need to be involved in the discovery process. If the lawyers are on a schedule and it’s not being complied with, either party could be sanctioned for not acting in good faith but the decision will, ultimately, rest with the judge.
Learn more about the different discovery devices by going to our quick link on discovery.
Settlement Process
Most lawyers and judges agree that a divorce settlement reached between the spouses will almost always be more favorable than the likely outcome of a contested trial. Settlement is preferred because there are opportunities for compromise.
For example, a mother who expects that she will be awarded primary custody can negotiate that the father agrees to pay certain college expenses for the children. In a divorce trial, the trial court has no authority to impose that obligation upon the father. Another advantage of settlement is that the parties don’t air their dirty laundry like they would at trial if friends and family are called as witnesses, putting each spouse’s personal issues on display.
How a divorce reaches a negotiated settlement varies from case to case. One common method is that one of the lawyers will be the first to draft a proposed settlement agreement and, if there are children, a proposed Parenting Plan. The other party can respond by making a counter-proposal, requesting mediation, seeking discovery, or asking for additional information. Generally, a party will have the right to complete discovery and perform a reasonable investigation into the valuation of the other party’s assets prior to beginning the settlement process.
In an average contested case, trial preparation can cost three to ten times as much as working in the spirit of settlement.
The number of considerations to make prior to settling your case is limited only by your imagination. To learn more about the different issues worth considering, go to our quick link .
Emotional Process
For better or worse, your marriage was an important part of your life. So, if you’re like most people, ending it won’t be easy – whether you initiate the divorce, it’s a mutual decision, or your spouse is the one who calls it quits. As the reality of your divorce sets in, clear and rational thinking may become difficult, if not impossible. Here’s what you might expect to face during this difficult time:
Emotions of the One Who Is Leaving
The person who is leaving or initiating the divorce may experience some of the common stages of grief. The most common issues experienced include:
- People do not understand how hard you tried to save the relationship or believe you could have done more.
- You find yourself second-guessing your ultimate choice to leave.
- You are afraid of being rejected by your family, mutual friends and even your children.
- You fear you are going to get all the blame for what led to your marriage falling apart.
- You may be tempted to jump right away into another relationship because you feel lost and alone.
What You May Feel If You Are the One Who Was Left
- Denial: You find yourself feeling, “This can’t be happening to me.” Divorce is something other people experience – but not you! This feeling can lead you to deny that the divorce is even taking place or lead you to push aside the pain you are feeling because it shouldn’t be happening.
- Shock: During this phase, you may experience mood swings, feeling of pain or numbness. As you feel out of control, you may lose sleep, distort eating patterns, and experience other uncomfortable or unhealthy behaviors. This can last for days or weeks – even months.
- Rollercoaster: You may feel like you are on a thrill ride of emotions that will never end. It can get to the point where you do not trust what you are feeling because you know it will change – again.
If you are contemplating divorce or are currently involved in the process, undoubtedly you fear failure and the unknown. You are not alone. If you don’t know where to start or what to do, contact us. We defend our clients’ rights, and we can point you in the right direction, too.
Divorce is a difficult, uncertain event with far-reaching, long-lasting effects. We understand and extend to clients personal attention, an appointment when you need one, and access to a network of professionals.
Our lawyers are compassionate and uncompromising when it comes to protecting your rights. We will work hard with your best interests in mind, take the time to listen, and stand by you throughout your divorce.
Our practice includes advice and representation in divorce matters involving paternity, restraining orders, custody and parenting plans, support and alimony, property division, separation agreements, business valuations, tax issues, divorce estate planning, prenuptial agreements, adoption, guardianships, same-sex divorce issues, Complaints for Modification and contempt and matters relating to The Department of Children and Family Services (DCFS) and The Department of Revenue (DOR). Call us, toll-free, at (800) 910-DIVORCE or contact us for a no-obligation consultation.