Divorce is one of the most stressful events in anyone’s life. These are the questions I’m asked most often by people considering divorce in Massachusetts, with straightforward answers. Every case is different, so use them as a starting point for a conversation with your own lawyer.
- Is Massachusetts a 50/50 state?
- Do we have to be separated, or live here a year, to get divorced?
- How long does a divorce take?
- Who gets the house?
- How do legal and physical custody work?
- How is alimony decided?
- Can my spouse be ordered to pay my legal fees?
- What issues usually get contested?
- What should I do while we’re separated?
- How will my lawyer bill me?
Is Massachusetts a 50/50 state?
No. Massachusetts uses equitable distribution, not an automatic 50/50 split. Under G.L. c. 208, § 34, a judge can assign all or part of either spouse’s property to the other, no matter whose name it’s in or when it was acquired, after weighing factors such as the length of the marriage, each spouse’s age, health, income, employability, needs and contributions, including contributions as a homemaker. In long marriages the result is often close to equal, but it doesn’t have to be. Spouses can avoid a judge’s decision by agreeing on their own division in a separation agreement, which the judge must still find fair and reasonable.
Do we have to be separated, or live here a year, to get divorced?
Massachusetts has no required separation period. Spouses can even live under the same roof while the divorce is pending, though that’s hard when the relationship is hostile.
There are residency rules. Under G.L. c. 208, §§ 4 and 5, if the reason for the divorce arose in Massachusetts, the spouse filing needs to be living in Massachusetts when they file, and the couple must have lived together here as a married couple at some point. If the reason arose somewhere else, the filing spouse generally must have lived in Massachusetts for the full year before filing. In either case, a person can’t move here just to get a divorce.
How long does a divorce take?
It depends on how much the spouses agree on:
- Uncontested (joint petition) divorces are often finished within about three to six months.
- Contested divorces commonly take a year to a year and a half, and longer if the case goes to trial or the court’s schedule is crowded.
After a judgment enters, it’s a judgment nisi, which becomes final 90 days later (§ 21). See the timeline of a Massachusetts divorce for each stage.
Who gets the house?
There’s no rule. The house is divided equitably like other property. Judges must consider the present and future needs of the children, so a parent who will have the children most of the time is often allowed to stay in the home, at least for a while, with the other spouse compensated through other assets, a buyout, or a later sale. Sometimes the only workable answer is to sell the house and divide the proceeds.
How do legal and physical custody work?
- Legal custody is the right to make major decisions about a child’s education, health care, religion and welfare. It can be shared, which is common, or sole.
- Physical custody is where the child lives. Shared physical custody means the child spends significant time living with each parent. Sole physical custody means the child lives mainly with one parent, and the other has scheduled parenting time.
Everything is decided by the child’s best interests. Parenting time can be limited or supervised when that’s needed to protect a child. Parents ideally agree on a parenting plan together. If they can’t, each submits a proposed plan and the judge decides.
How is alimony decided?
Under the Alimony Reform Act, in effect since 2012, general term alimony should generally not exceed the recipient’s need or 30 to 35 percent of the difference between the spouses’ gross incomes (§ 53). For marriages of 20 years or less, its length is generally capped at a percentage of the marriage’s length (§ 49):
- 5 years or less: up to half the number of months of the marriage
- More than 5 and up to 10 years: up to 60 percent
- More than 10 and up to 15 years: up to 70 percent
- More than 15 and up to 20 years: up to 80 percent
- More than 20 years: the court may order alimony for an indefinite period
General term alimony ends when the recipient remarries or either spouse dies. It generally ends when the payor reaches full Social Security retirement age, unless the court finds good cause to set a different date. It can be suspended, reduced or ended if the recipient lives with another person in a common household for at least three months. There are also rehabilitative, reimbursement and transitional forms of alimony for particular situations.
Can my spouse be ordered to pay my legal fees?
Usually each spouse pays their own lawyer. But the court has authority to order one spouse to contribute to the other’s fees, and when incomes are very unequal, a spouse can ask early in the case for a temporary order requiring a contribution so they can afford representation. Fees can also be awarded against a spouse whose conduct made the case more expensive. Awards aren’t automatic, and they’re more common in some situations than others.
What issues usually get contested?
The issues most often fought over are how to divide assets and debts, the parenting schedule, and sometimes physical custody, alimony and child support. Even in a contested case, spouses usually agree on some issues. Identifying those early narrows the dispute and reduces the cost.
What should I do while we’re separated?
- Get advice before you sign anything. Have a lawyer review any separation agreement or written arrangement first.
- Be careful with money. Read about bank accounts before and during divorce before moving funds.
- Think twice about a new relationship while the case is pending. It can complicate custody and settlement.
- Be fair. Support the children’s relationship with the other parent when it’s safe. Judges notice which parent is acting like the adult in the room.
- Watch what you post. See evidence in a Massachusetts divorce.
How will my lawyer bill me?
Some uncontested divorces are handled for a flat fee. Most contested cases are billed hourly against a retainer, an advance payment held in a client trust account and drawn down as work is done. Your written fee agreement should state the hourly rates, what’s billed, how often you’ll get an invoice, and when the retainer must be replenished. Read it carefully, and ask questions about anything on a bill you don’t understand.
Have a question that isn’t here?
Call 978-273-8337 or contact our office to talk through your situation before you file.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on divorce, property division, custody and support. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
Related Practice Area
Massachusetts Family Law →