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Divorce Primer - The Contested Case

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By Law Offices of Sharyn T. Sooho

Published:  October 22, 2004

If you ever wondered what your lawyer is trying to accomplish on your behalf, read the following short description of the step-by-step legal process in Massachusetts:

1. Initial interview: meet your lawyer and provide basic information such as date of marriage; names and birth dates of children and parties; sources and amounts of income for both parties; list of assets and debts; what you want and why.

2. Review fee agreement. Discuss range of fees and costs, but keep in mind the lawyer cannot predict exactly what the divorce will cost.

3. Seek a second or third opinion. Be prepared to pay for these consultations.

4. Pick your lawyer, sign fee agreement and pay retainer. Keep a copy of the fee agreement.

5. Inform your spouse you have retained a lawyer. If your spouse is abusive, have your lawyer deal with your spouse.

6. Your lawyer will file a complaint for divorce and have a summons and copy of the complaint served on your spouse.

7. Motions (written requests to the court) for temporary orders may be filed by your attorney and served on your spouse if you need to deal with payment of bills, parenting issues, including child support, alimony, use of the marital home, etc. The court will not divide assets at this stage.

8. Hearing on motions will take place after your spouse is notified, unless there is an emergency, like abuse of a child or spouse.

9. Temporary orders are issued by the court after a hearing. Both parties have a chance to speak through their lawyers. You are not legally required to hire an attorney and may speak for yourself.

10. Financial statements and other information must be exchanged. Lawyers usually refer to this phase of the case as "discovery," meaning the investigation or discovery of information relative to the case, like the identification and valuation of assets; psychological profiles of the parents and children, if custody is an issue; employability of the parties, etc.

11. Request for Pretrial Conference: If you have not settled your case after discovery is completed, your lawyer will ask the court to schedule a conference with the judge. Prior to meeting the judge, you and your spouse must meet in person with your lawyers. The only exception: if you have an abuse prevention order, you are not required to meet in person. If you do not reach an agreement, your lawyer must prepare a pretrial memorandum outlining your case, including the relevant facts and law.

12. Pretrial Conference: The judge will read the pretrial memoranda prepared by both parties' lawyers and will give an oral opinion on the parties' respective presentations. The conference usually takes place at the bench in the courtroom.

13. Request for Trial: If the parties fail to settle as a result of the judge's remarks, the lawyers will request a trial date. In some counties the parties must wait many months before a trial date is scheduled.

14. Trial: Divorce trials take place before a judge without a jury. Most divorce trials span two to three days.

15. Proposed Findings of Fact, Rulings of Law and Judgment: Your lawyer prepares and submits what you would like the judge to do after trial.

16. Entry of Judgment of Divorce Nisi: This is the preliminary judgment that the judge enters after trial. In some instances the judge will enter the judgment immediately, but you will probably wait at least one month for every day of trial. For instance, if your trial lasted three days, expect to wait three months for a judgment. The judgment will include provisions for the division of assets, and alimony. If you have children, the judgment also includes orders relative to their care, custody and support. If you are dissatisfied with the judgment, you might file motions for relief from judgment or an appeal to a higher court.

17. Entry of Judgment of Divorce Absolute: This is the final judgment that enters automatically 90 days after entry of the judgment of divorce nisi. Until the final judgment is issued, you are not legally free to remarry. The child-related terms and alimony provisions of the judgment remain in effect unless and until a material change in circumstances occurs, in which event you may file a complaint for modification. Property issues are not subject to modification.

Last modified:  October 22, 2004 - 02:22 PM


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