The Legal and Financial Aspects of Divorce in Massachusetts

Get an overview of the legal and financial aspects of divorce in Massachusetts.

If you're ready to get divorced, you'll need to decide if you want to hire a lawyer or handle your divorce yourself. Massachusetts has its own divorce laws. It's important that you understand the rules for divorce in your case.

Massachusetts Divorce Laws

Either spouse can file for divorce in Massachusetts. Couples can reach their own agreements settling all issues in their case. For couples who can't agree, a judge will decide issues regarding property division, alimony, child custody, and child support at trial. Whether you settle your case early on or have to go to trial, Massachusetts has a six-month waiting period from the time you file your case before a judge will grant your divorce. See Mass. Gen. L. Ch. 38 § 1(b) (2020).

Types of Divorce in Massachusetts

When you file for divorce in Massachusetts, you'll need to state a "ground" or reason for your divorce. Massachusetts allows both "fault" and "no-fault" divorce grounds. In a no-fault divorce, you don't have to blame your spouse for your divorce. Instead, you can you claim "irreconcilable differences" which is just another way of saying that you and your spouse don't get along.

In a fault-based divorce, you are claiming that your spouse's bad behavior caused the divorce. Massachusetts allows the following fault grounds:

  • adultery
  • impotency
  • desertion for one year before the divorce
  • non-support
  • drug or alcohol abuse
  • cruelty or abusive treatment, and
  • a prison sentence of five or more years.

Fault-based divorces are usually more time-consuming and expensive than a no-fault divorce. In a fault divorce, you have to prove that your spouse engaged in specific misconduct that caused the breakdown of the marriage. Some spouses seek a fault-divorce because a spouse's fault can impact a divorce property award or alimony.

For example, if you can show that your spouse recklessly spent marital funds on a drug addiction, you might be entitled to a larger portion of the marital estate or another form of reimbursement. See Mass. Gen. L. Ch. 38 § 1 (2020).

Is Massachusetts a Community Property State?

No, Massachusetts follows equitable distribution rules, not community property rules. In Massachusetts, a judge will divide marital property equitably (fairly), but not necessarily equally. "Marital property" includes any income, assets, and property acquired by either spouse during the marriage. It doesn't include any "separate" property, which is all income, property, and assets owned by a spouse before the marriage. Separate property won't be divided between the spouses in a divorce.

When deciding how to divide property, a Massachusetts judge will consider several factors, including:

  • the length of the marriage
  • the age, physical health, and mental health of the spouses
  • each spouse's income, education, and earning capacity
  • each spouse's conduct during the marriage
  • either spouse's alimony award, if any
  • each spouse's financial needs, and
  • each spouse's liabilities and assets.

Although courts usually divide marital assets more or less equally, a judge will make exceptions in cases involving marital misconduct that financially impacted the family. For example, if one spouse spent thousands of dollars of marital funds on gifts for a lover, or on a gambling addiction for example, a court may award the "innocent" spouse a greater share of the marital property as a form of reimbursement. See Mass. Gen. L. Ch. 208 § 34 (2020).

Alimony in Massachusetts

Massachusetts doesn't have set guidelines for calculating alimony (also called "spousal support" or "maintenance"). When deciding whether to award alimony, how much to award, and for how long, a judge will look at the following factors:

  • the length of the marriage
  • each spouse's income, skills, and employment opportunities
  • each spouse's current obligations (debts) and potential financial needs
  • each spouse's age and health
  • the present and future needs of any children of the marriage, and
  • conduct during the marriage, such as adultery, abuse, or abandonment.

For more information about alimony in Massachusetts, see Understanding and Calculating Alimony in Massachusetts.

Child Custody in Massachusetts

When parents can't resolve custody and visitation issues on their own or at mediation, a court will decide custody based on a child's best interests. Specifically, a judge will look at like the child's relationship with each parent, the parents' ability to work together, the child's ties to community and extended family members, each parent's physical and mental health.

There isn't a custody preference for mothers over fathers. Instead, a judge will award physical custody (where a child lives) and legal custody (decision-making rights over a child) based on a child's needs.

Child Support in Massachusetts

In Massachusetts, both parents (whether married to one another or not) have a legal obligation to financially support their children. Massachusetts has child support guidelines to help parents and judges calculate child support. A child support award is based on each parent's income and the number of children involved. However, in some cases the guideline child support amount is inappropriate. A judge can deviate from the child support guidelines if a child has extraordinary needs or expenses.

Imputing or Attributing Income

Unfortunately, some deadbeat parents will go to great lengths to avoid paying child support. A parent may take a lower paying job or quit working altogether to reduce a child support award. If a judge finds that a spouse or parent is voluntarily underemployed or unemployed, the court may "impute" (assign) income to that spouse. This means a judge will calculate child support based on what a parent should be earning rather than the actual income.

Prenuptial Agreements Can't Affect Child Support

Prenuptial agreements can be used in Massachusetts to spell out each spouse's property rights and responsibilities as long the agreement is fair and reasonable. However, a court won't uphold provisions of a prenuptial agreement dealing with child custody and child support. Parents can't contract away a child's right to support or decide a child's best interests. Child support belongs to the child, not his or her parents.

Do I Need a Lawyer?

Some couples are able to handle their divorces on their own. However, family law can be a very complicated area of the law, especially when dealing with the financial parts of a divorce trial. You may have questions that only a professional can answer. At a minimum, you should hire an experienced attorney to review any proposed property settlement agreement (PSA) and ensure that your rights are fully protected.

Resources

For more information about child support, including how to apply for child support in Massachusetts see the Child Support Enforcement Unit (CSE) of the Massachusetts Department of Revenue (DOR) website. For online access to information about the Massachusetts Probate and Family Courts, click here.

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