Entering into a divorce in Massachusetts raises a number of questions and concerns. This article answers some of the most common and difficult questions that arise in a Massachusetts divorce. For insight into your particular situation, contact attorney Gaudet, an experienced Massachusetts divorce attorney.
This article is arranged by issue. You are welcome to read through all of the questions and answers, or, if you prefer, advance directly to the topic that interests you by clicking on it below:
- How does child custody and parenting time work in a Massachusetts divorce?
- How is legal custody defined in Massachusetts?
- How is physical custody defined in Massachusetts?
- Massachusetts parenting plans
How is legal custody defined in Massachusetts?
Legal custody in Massachusetts is the right and responsibility of a parent to make educational, medical, religious, and other important decisions about their child. Parents in a Massachusetts divorce can have either sole legal custody or shared legal custody. With sole legal custody, one parent is the only parent with the right to make these important decisions. With shared legal custody, both parents are involved in making these decisions for the child or children.
How is physical custody defined in Massachusetts?
Physical custody determines where the child lives. Shared physical custody means that each parent has nearly equal contact with the child or children, with time divided close to evenly between the two households. Sole physical custody means that the child lives primarily with one parent, while the other parent has scheduled parenting time.
Be aware that some parenting time may not be in the best interests of the child. When that is the case (often in a sole custody arrangement), a parent may be limited in the parenting time they receive, or may be required to have supervised visits.
Massachusetts Parenting Plans
A parenting plan sets out how parents will share time with and responsibility for their children after a divorce. These plans, and the details within them, vary widely from one Massachusetts divorce to the next. Ideally, both parties to a Massachusetts divorce or custody dispute develop the parenting plan together, and the judge then approves or adjusts it. Sometimes a jointly submitted plan is not possible because the parties’ positions are too far apart. When a custody dispute in a Massachusetts divorce is especially contentious, each parent submits a separate parenting plan, and the judge decides between them.
Question Your Divorce Attorney About Spousal Support or Alimony
As of 2022, Massachusetts Probate and Family Court judges use the following durational limits to determine general term alimony when it is requested of the court:
- For marriages up to 5 years, the term is to be no more than half the number of months of the marriage.
- For marriages of 5 to 10 years, the term is to be no more than 60% of the number of months of the marriage.
- For marriages of 10 to 15 years, the term is to be no more than 70% of the number of months of the marriage.
- For marriages of 15 to 20 years, the term is to be no more than 80% of the number of months of the marriage.
- For marriages of 20 or more years, the court may order alimony for an indefinite term.
Massachusetts law also addresses the cohabitation of a spouse who receives alimony, at least with respect to general term alimony. When a former spouse cohabitates with another person, a judge can suspend, reduce, or even eliminate the alimony.
As for the amount of alimony, the general rule is that alimony should not exceed the recipient’s need or 30 to 35% of the difference between the gross incomes of the parties as of the time of the order.
Please keep in mind that alimony is a complex issue in any Massachusetts divorce. There are several types of alimony in addition to general term alimony, and not all of them will apply to your case. Alimony awards can also be modified, and reaching retirement age may serve as the basis for modifying an alimony order.
Question Your Divorce Attorney About Requesting Attorney’s Fees in Massachusetts
Generally, Massachusetts courts require each party to a divorce to pay their own legal fees and expenses. There are cases, however, where a party to a Massachusetts divorce may not have to bear the full cost of their own attorney. Contact our offices to gain some insight into whether you may be able to recover or avoid certain legal fees.
It is also possible to file a motion for a temporary order asking the other side to pay the attorney’s fees necessary to maintain the divorce or other action. Often, it is the attorney’s retainer that one side seeks through this type of motion. It should be noted, however, that an award of attorney’s fees is unlikely in most Massachusetts courts. It is not impossible, but these awards are rarely achieved.
Question Your Divorce Attorney About the Divorce Process in Massachusetts
How long does a Massachusetts divorce take from start to finish?
In general, a divorce in Massachusetts takes anywhere from three months to two years, depending on the complexity and course of the case. Where the divorce is uncontested (meaning both parties are able to agree on how to divide the assets and liabilities of the marriage and how to arrange for the support of the children and each other), it is possible to complete a Massachusetts divorce in three to six months.
When a divorce moves toward trial, on the other hand, the process can be extensive. Even in the best case, where you and your spouse cannot reach a settlement agreement but manage to get before a judge for trial within a year, the trial itself may be delayed or extended. Any delay or extension of the trial will push the case out another few months or so.
Ideally, you are through a Massachusetts divorce in roughly one year. Contact our offices for an assessment of your case to determine the likely trajectory of your Massachusetts divorce.
Question Your Divorce Attorney About Which Issues Are Likely to Be Contested and Which Uncontested
Which issues are typically contested?
Contested issues in a divorce are just what you might imagine: matters that the parties cannot agree upon. Common areas of disagreement include:
- how to split the assets
- how to divide liabilities (credit cards or loans, for example)
- physical custody (less common, but often at issue in one way or another)
- the parenting schedule or visitation
Which issues are typically uncontested?
Uncontested issues in a divorce are the matters the parties can agree on. For example, both parties may agree that one parent will have primary physical custody and the other will pay child support. The remaining questions then become how much child support is owed and whether other aspects can be shared or negotiated to balance the assets and liabilities, whether to favor one side or to reach a more even division. It is very important to nail down early in the Massachusetts divorce proceeding which issues are agreed upon, so that the parties can then focus on the issues they do not agree upon and how to navigate those contested matters going forward.
Questions for the Lawyer About Billing in a Divorce
How am I billed for the lawyer’s services?
In a Massachusetts divorce or other family law matter, lawyers can bill in a couple of different ways. Some lawyers bill a flat fee, charging a set amount for the divorce. When a lawyer bills this way, the amount typically does not change. For example, if the lawyer charges $5,000 for a joint divorce or 1A divorce, that price is the total cost for the service. Other lawyers bill through a retainer, which is more common. The retainer is usually a base amount of money held by the lawyer in trust for the purpose of paying the attorney as fees are earned. When a lawyer charges a retainer, this trust account is used only for legal fees, and the engagement or fee agreement you sign will typically explain when the lawyer will review certain charges with you before applying them to your bill.
How often will I receive a bill?
In a Massachusetts divorce or other family law matter, lawyers who hold a retainer from a client must provide that client with a monthly invoice. A good attorney will provide this invoice regularly, giving you the opportunity to review your charges and raise any concerns about those charges or fees.
How much does the lawyer charge per hour?
Where a lawyer requires a retainer in a divorce, that lawyer will charge an hourly fee. Hourly rates should be clearly stated in the fee agreement with the client, and any change to those rates should be communicated to the client well in advance.
DISCLAIMER:
The information provided in the pages and posts of this website is for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by use of this site.
