What is a Contested Divorce?

couple arguing over a massachusetts divorce

What is a Contested Divorce in Massachusetts?

Contemplating the end of a marriage is never easy, but when it comes to a contested divorce in Massachusetts, it’s important to understand the legal landscape and the intricacies involved. In this blog post, we’ll walk you through the challenging journey of a contested divorce in the Commonwealth of Massachusetts, providing valuable information and advice to help you make the best decisions for your future.

Understanding the Basics

When it comes to divorce, Massachusetts offers various options. Understanding the differences between contested and uncontested cases is essential. Uncontested divorce generally means both parties agree on the terms of their divorce, while contested divorce signifies significant disputes regarding issues like child custody, property division, spousal support, or other crucial aspects.

Contested divorces are often rooted in irretrievable breakdowns of marriage, irreconcilable differences, or fault-based grounds, such as abusive treatment. It’s essential to consult with experienced Massachusetts family law attorneys to determine the best option for your unique situation. Legal advice is invaluable during this challenging time.

Residency Requirement and Filing

Before you can initiate a contested divorce in Massachusetts, you must meet the residency requirement. At least one party must have lived in the state for a minimum of six months before filing. Or the two of you must have lived here as a couple and the reason for the divorce happened here. Once this requirement is met, the divorce process can commence.

To start the process, one party files a “1B divorce complaint” in the Probate and Family Court along with several other documents. There is also a filing fee that needs to be paid to the Probate and Family Court. After you file, you must have your spouse served with these papers by a sheriff or constable.  This initiates the divorce action and sets the wheels in motion for what can be a lengthy and emotionally demanding journey.

One of the first thing that happens is that automatic restraining orders go into place. These orders prevent you and your spouse from selling valuable assets or incurring debt. 

Legal Separation vs. Divorce

There’s no such thing as legal separation in Massachusetts. There is, however, something called separate support. Separate support is financial support paid by your spouse for the benefit of you or your children. It can also address some of the same issues as a divorce such as:

  • Child custody,
  • Parenting time, and
  • Health insurance

Separate support is available to you under a number of situations, such as:

  • When you and your spouse are living apart,
  • You’ve been deserted, or
  • Your spouse is not providing sufficient support.

The Discovery Period

The discovery period is a crucial phase in a contested divorce. It’s during this time that both parties gather information, documentation, and evidence to support their respective positions. This can involve a laundry list of documents, including financial statements, bank account details, real estate records, and more.

We’ll guide you through the process of what needs to be disclosed and can request information from the other party as well. The discovery period is essential for building your case, and we’ll work hard to ensure you have a strong foundation.

Temporary Orders and Financial Support

During a contested divorce, the court may issue temporary orders to address immediate issues like child custody, spousal support, and child support. These orders provide stability and ensure that both parties and their minor children are cared for during the divorce proceedings.

Once the divorce is filed, automatic restraining orders go into place. These orders prevent both you and your spouse from selling assets, cleaning out bank accounts and getting into more debt.

Pre-Trial Phase and Pre-Trial Conference

As the divorce proceedings progress, you’ll reach the pre-trial phase, where both parties, along with their legal counsel, meet to discuss the case’s status and try to resolve any outstanding issues. This pre-trial conference aims to streamline the process and potentially reach agreements on various aspects of the divorce.

Before the conference, you will need to submit a pre-trial memorandum outlining your position on issues like property division, child custody, and more. The goal is to present a strong case, whether it’s in your best interest to negotiate or go to trial.

Child Custody and the Best Interests of the Child

Child custody can be one of the most challenging aspects of a contested divorce. It’s important to understand the difference between legal and physical custody. Massachusetts courts always prioritize the best interests of the child when making decisions about custody and visitation. Factors such as:

  • the child’s age,
  • relationship with each parent, and
  • the ability of each parent to provide a stable environment

are carefully considered.

It’s crucial that we work together to develop a parenting schedule that suits the needs of both you and your child. Remember that the court’s ultimate goal is to ensure the child’s well-being and happiness.

Property Division and Financial Statement

Property division is another critical component of a contested divorce. Massachusetts law follows a general rule of equitable division of marital assets, but this doesn’t necessarily mean a 50/50 split. A fair distribution may depend on various factors, including:

  • the length of the marriage,
  • each party’s contribution, and
  • their individual financial needs.

To facilitate the property division process, you will need to provide a detailed financial statement that outlines your assets, liabilities, income, and expenses. This document is crucial for the court to determine how assets should be allocated.

Divorce Hearing, Nisi Period, and Judgment

After navigating the various stages of a contested divorce, you will reach the point of a divorce hearing, where the court will make the final decisions regarding the terms of your divorce. The court will issue a judgment of divorce, which outlines the specifics of the divorce agreement, including property division, spousal support, and child custody.

Following the divorce hearing, there is a nisi period, which allows for a 90-day waiting period before the divorce is finalized. During this time, either party can appeal the decision or request modifications to the judgment.

Once this period has passed, and if there are no appeals or modifications, the divorce becomes final. A certified copy of your marriage certificate with the court order will be issued to make it official.

Conclusion

Navigating a contested divorce in Massachusetts can be a complex and emotionally taxing process, but with the right support and legal guidance, you can make informed and important decisions about your future. It’s crucial to consult with experienced Massachusetts family law attorneys who can guide you through the legal intricacies and advocate for your best interests.

Remember, during this challenging time, you are not alone. Seek the best legal advice, explore your options, and prioritize the well-being of your minor children. By following the steps outlined in this guide, you’ll be better prepared to navigate the storm and find a path forward to a brighter future.

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