One of the reasons divorce is so painful is because it's hard to look at objectively. Marriage is a legal contract, but no other contract on the face of the earth is as entangled with emotion as a marriage. Love, guilt, regret and nostalgia are all mixed together when you have to end your marriage contract with a divorce.
But if you and your spouse are able to put aside your wounded feelings and work together, you can take some of the sting out of your divorce. In fact, if you can negotiate and cooperate, you might even be able to get an uncontested divorce, which will save you a lot of time and money.
This article will explain uncontested divorces in Massachusetts. If you still have questions after reading this article, you should consult with an experienced family law attorney.
An uncontested divorce simply means that both spouses agree on all the key terms of the divorce, including:
If you or your spouse disagree about any of these items, your divorce will be considered "contested" and it will have to go to trial. But keep in mind, you can still reach an agreement at any time before the judge issues a final order.
Massachusetts has a special kind of uncontested divorce called a "No-fault 1A Divorce." Divorcing couples can file for a 1A divorce when the spouses:
The spouses must sign the separation agreement and have it notarized. The couple will also have to file a joint petition for divorce, a joint affidavit of irretrievable breakdown, and individual income statements. Once the court has determined that there’s an irretrievable breakdown of the marriage and accepts the separation agreement, a judge will enter a divorce order and a judgment of divorce will be issued 30 days later. It will become final 90 days after issuance.
There are a couple of preliminary rules that have to be satisfied before you can get divorced in Massachusetts. Keep these in mind before you get started.
You’re responsible for knowing where to file your papers. If you file in the wrong place, your case could be tossed out or transferred and you might have to start over. The Massachusetts Judicial Branch has a website you can use to identify each trial court and the counties it serves.
Massachusetts has a system of trial courts which have the authority to hear many kinds of cases. Each trial court is sub-divided into different departments, including a Probate and Family Department. The law says that if you're filing for divorce, you can do it in the county where you or your spouse currently live. However, there's a big exception to this rule—if you or your spouse are still living in the last place where you previously resided together as a married couple, then you have to file for divorce in that county.
Remember: when you're starting your case, it's crucial to file your papers in the correct court.
The first thing that you and your spouse need to do is locate the correct forms and complete them. Two key documents you'll prepare are a joint petition and a written separation agreement, which memorialize the terms of your settlement. You and your spouse will be "joint petitioners," which is like saying you're co-petitioners. Take your time and work carefully. Type everything on a computer or print neatly. If you rush through the papers and make mistakes, your divorce could be delayed.
Feel free to talk to the court clerks who work in the courthouse, but keep in mind that they can’t give you any legal advice. You may be able to get help through the Massachusetts Court System: Self-Help Center or Massachusetts Legal Help (legal aid and free divorce information). If you still have unanswered questions, you’ll probably need to consult with a family lawyer.
In addition to the petition and separation agreement, you will also need to prepare a joint affidavit (a sworn statement by both of you) saying that the reason your marriage is ending in divorce is because there's been an irretrievable breakdown. The fastest and best thing to do is to go to a notary together and sign the affidavit at the same time. If you can't do this for some reason, you can get the affidavit notarized separately.
You may have heard about other divorce documents, like a summons and answer. You won't need any of those other documents to get this special kind of uncontested divorce. You also don't need to worry about serving the other spouse with legal papers.
When the papers have been filled out, the joint petitioners should take them to the courthouse for filing. The clerk of court will charge a filing fee, but if you can't afford to pay, don't worry. You can ask for a fee waiver form, which you will fill out and use to provide the court with financial information. If you meet the income guidelines, a judge will sign an order eliminating all fees for the duration of the case.
Make sure you file the signed affidavit with the joint petition and separation agreement. Keep everything together, because things will only get more complicated if you don't. In any event, you've got to get the signed affidavit filed within 90 days of the day you file the petition.
Next, a judge will look at your papers to make sure that you reached an agreement on all the key terms, like custody, support, alimony and property division. If everything is in order, the judge will make an initial decision that there's been an irretrievable breakdown of the marriage, and your case will be scheduled for a final hearing.
At the final hearing, the spouses will give testimony by responding to some very brief questioning from the judge. The judge will sign the final divorce order if it is fair and reasonable and all the rules have been followed.
Massachusetts General Laws, Part II, Title III, Chapter 208 (Divorce)