The joke in law school is that the answer to almost every legal question is, “it depends.” It depends is the answer to the question, “should I file for divorce before my wife or husband” because the circumstances of the individual considering filing for divorce will be the deciding factor. Let’s look deeper into the question of whether or not you should file for divorce before your spouse in Massachusetts.
Divorce Where Both Spouses Live in Massachusetts
When both spouses reside in Massachusetts, it is generally unimportant as to which party files for divorce first. The reason that taking the initiative doesn’t generally matter in a Massachusetts divorce involves two factors, below:
- Equitable Division – Massachusetts is a state which uses the legal concept of equitable division of assets, which in essence means that the property held by the couple during their marriage is to be divided by a Massachusetts Probate and Family Court judge equitably (fairly). What constitutes fair in the context of the division of assets in a Massachusetts divorce is an entirely different subject and beyond this scope of this article. However, generally, a Massachusetts judge will divide the property between the spouses after considering the circumstances of the marriage that might contribute pulling assets to one side or the other for the purpose of producing an equitable (fair) result.
- The Court Process – a divorce filed in a Massachusetts Probate and Family Court by one party, will typically result in the other party filing an Answer to the Complaint for Divorce and a corresponding Counterclaim in Divorce. The counterclaim essentially asks for divorce for the other party (the party that did not file for divorce initially).
Contested divorce, that is, divorces where both parties do not agree on what has happened during the marriage and on what they want from one another financially, involving custody of children, etc., will result in the previously described initial complaint/answer and counterclaim for divorce framework. As a result of this framework, it is largely immaterial who has filed for divorce first, because the other side is saying that they disagree with nearly everything that the initial filer in divorce has said and wishes to contest it. These differing viewpoints put the judge in the position of having to decide (if the divorce goes to trial) which set of facts are true, and then how to equitably divide the assets of the couple as a result.
Divorce When You Could File in Massachusetts or Could File in Another State
When the couple could file for divorce in Massachusetts or choose another state because of the laws in that other state regarding eligibility to file for divorce in that state, it is possible that filing for divorce in one state may be advantageous over the other state. For example, in Community Property states (Texas, for example) the division of marital assets is almost 50/50 right down the line generally speaking. Contrast Texas divorce law to Massachusetts divorce law, and you might see the advantage of filing for divorce in Texas if it is possible that a pure 50/50 split of assets would get you the best outcome.
Still, even in the same Massachusetts vs Texas scenario, there might be reasons that filing for divorce in Massachusetts is more advantageous to your position. For example, let’s imagine that you are the wife of a man who has become successful in his career and to assist him in getting to that point you sacrificed by putting aside your aspirations of a career. The sacrifice that you made, maybe by working full time while he was in college, by taking care of the kids full-time, etc., has actual value. In other words a judge can consider this time and apply a figurative dollar value to that time in arriving at the ‘equitable division of marital assets’ that we have been discussing in this article.
When circumstances point towards filing in one state over another state, it would be a good idea to get a jump on your spouse and file for divorce in the state that works best for you (generally and circumstantially speaking of course, you need to run these concepts by our attorney to get specific results advantageous to your case).
There are still more details about filing for divorce in Massachusetts rather than another state that must be weighed into any decision about when to file first. Contact attorney Gaudet at 978-273-8337 or by email at rgaudet@gaudetlawoffice.com to get more information about when to file for divorce.
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