Uncontested Divorce in Massachusetts
When spouses decide to file for divorce, there are two main ways they can go about it: contested and uncontested divorce.
- A contested divorce means that one spouse does not want to file for divorce or disagrees with the divorce terms regarding property division, child custody, spousal support, or any other issue. So, contested divorce typically requires more time and effort to reach a final divorce agreement and may involve a trial or several hearings.
- In an uncontested divorce, the spouses resolve all their disputes (including marital property and child-related issues) by drawing up a Marital Settlement Agreement, also referred to as Separation Agreement in Massachusetts.
An uncontested divorce typically takes less time than a contested one because there is no trial. Besides, if the spouses seek an uncontested no-fault divorce (called a "1A" divorce in Massachusetts), they file a Joint Petition. Thus, they skip the "service of process" and allow their divorce case to move even more quickly.
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Steps for Filing a Divorce in Massachusetts
The Massachusetts divorce process involves several consecutive stages.
For the Probate and Family Court to have jurisdiction over a divorce case, a couple must meet one of the following residency requirements:
- The spouses previously lived together in Massachusetts, and one of them lived within the state when the ground for the divorce happened;
- The ground for divorce occurred in Massachusetts, and the filing spouse lives in Massachusetts (unless it's proved that the plaintiff moved to Massachusetts to get a divorce);
- If it is impossible to prove that the ground for divorce occurred within the state, the plaintiff (filing spouse) must have been a resident of Massachusetts for a minimum of one year before the start of the divorce process.
All divorce proceedings are started by filing a divorce petition at court. This initial court document must state one of the grounds for divorce, established by the state law. Massachusetts recognizes both fault and no-fault grounds for divorce. Fault-based grounds mean that one spouse argues that the other spouse did something that caused the marriage's breakdown. The fault-based grounds for divorce include:
- Cruelty and abusive treatment;
- Abandonment for at least one year;
- Drug or alcohol addiction;
- Gross refusal or neglect to provide suitable support while having an ability to do so;
- A prison sentence (for five years or more).
The only ground applicable for a no-fault divorce in Massachusetts is Irretrievable Breakdown of Marriage. Choosing this ground, the spouses can apply for 1A divorce (if they have a Separation Agreement) or 1B divorce (if they agree that the marriage has broken up but cannot resolve some of their disputes out of court).
To start the divorce process in Massachusetts, the spouse initiating the case (or both spouses jointly if they have a Separation Agreement) must file the petition and other Massachusetts divorce papers with the Court Clerk in the county where either spouse resides.
Divorce papers in Massachusetts
The Massachusetts divorce papers that a couple must file differ depending on the type of the divorce (such as whether it is contested or not) and other circumstances of their particular case.
For example, primary uncontested no-fault divorce forms needed to begin the process include:
- Joint Petition for Divorce (CJD 101A)
- Certified copy of the marriage certificate
- Affidavit of irretrievable breakdown
- Record of Absolute Divorce (R-408)
- A financial statement from each spouse (CJD 301S form must be filed if the applicant's annual gross income is less than $75,000, and the CJD 301L form for higher income, respectively)
- Separation Agreement
When filing divorce documents, the plaintiff (or the spouses jointly when filing a 1A divorce) must pay a mandatory court filing fee. This fee is $200 in Massachusetts regardless of the type of dissolution. However, if the spouses do not have a Separation Agreement (1B divorce), the plaintiff must pay another $5 divorce summons charge. Filing fees are mandatory in all cases unless the plaintiff is qualified for a fee waiver due to financial hardship.
In a contested divorce in Massachusetts, a hearing typically cannot be scheduled earlier than six months from the filing date. In contrast, there is no mandatory waiting period before a final hearing when filing for an uncontested divorce. However, there is a so-called "Nisi Period" between when the judge signs a Final Judgment of Divorce and when that Judgment takes effect. The mandatory Nisi Period lasts 90 days. Besides, if the spouses file for 1A divorce, there is also a 30-day waiting period before the Nisi Period begins. Thus, the total waiting period from the date the divorce is granted until it becomes absolute is 120 days for A1 divorce. Once the Nisi Period is over, the divorce is final.
Service of process means giving copies of the divorce petition and other required divorce forms to the defendant in a legally appropriate manner. In the case of an uncontested no-fault Massachusetts divorce, the spouses file a Joint Petition for Divorce, so they skip this step. And if the spouses don't have a Separation Agreement and file for 1B divorce, the plaintiff must serve the Summons and Complaint on the defendant by hiring a sheriff or constable. The Summons contains the Return of Service form, which is an acknowledgment of service. The plaintiff must serve their spouse within 90 days after filing and pay the service fee.
In a 1A divorce, once all the divorce paperwork is filed, the court can set a hearing date. Typically, both spouses must attend the final hearing unless the court has accepted an attendance waiver for one of them. The judge usually asks questions about the spouses' Separation Agreement to ensure it is fair and then grants a divorce. Nisi Period begins automatically 30 days later. A contested divorce requires a pre-trial hearing, and a final hearing cannot be scheduled sooner than the mandatory six-month waiting period expires.
Getting a Divorce With Children
In a Massachusetts divorce, if the spouses have minor children, custody proceedings must be decided following the child's best interests. Therefore, the court considers numerous factors and circumstances to determine which form of custody would be better for a particular situation. These factors include but are not limited to:
- These factors include but are not limited to:
- the child's parents' mental and physical health;
- each parent's moral fitness;
- the child's relationship with each parent;
- the present living conditions of the child;
- the parents' custody arrangement, if any;
- any history of domestic violence, child abuse, or negligence.
In general, there are two types of custody that may be granted to either one parent or both parents jointly: physical and legal custody.
- Physical custody determines with whom the child lives. Joint physical custody means that the child has more or less equal periods of residing with each parent.
- Legal custody determines who has the decision-making authority. The court may appoint joint legal custody even along with sole physical custody.
As for child support, there is a presumption that Massachusetts Child Support Guidelines apply in all cases, barring extraordinary circumstances. These guidelines are based on each parent's gross income, earnings, other evidence of ability to pay, and the number of children. The appropriate amount of child support for a particular case must be determined by completing the Child Support Guidelines worksheet. Typically, child support continues until the child reaches 18. However, it may be extended if the young adult lives in the parent's home and is still "dependent" on the parent due to the enrollment in an educational program (up to 21-23 age).
For the divorcing spouses who have children under 18, the following forms are provided:
- Affidavit disclosing care or custody proceeding (OCAJ-1 TRC IV)
- Child Support Guidelines worksheet (CJD-304)
- Findings and Determinations for Child Support and Post-Secondary Education (CJD 305)
- Affidavit of Care and Custody (for a contested divorce) (OCAJ-1)
Filing for Divorce in Massachusetts Without a Lawyer
The main advantage of 1A divorce is that the spouses can do with limited legal advice or even arrange their own divorce.
The Massachusetts divorce procedure does not oblige anyone to contact a law firm to deal with their case. And if both spouses agree to work together toward mutual goals, you can avoid unnecessary expenses.
The most common ways to arrange your own divorce are online divorce document preparation and divorce mediation. Divorce mediation is used to help the parties create a Separation Agreement out of court. This alternative dispute resolution process is more peaceful and flexible than litigation.
Do-It-Yourself Divorce in Massachusetts
- Representing yourself in a divorce case without a lawyer is perfectly legal. However, though it can be a fitting solution for uncontested divorces, the spouses still need to be well aware of their particular legal rights and complete the papers correctly to eliminate case delays.
- DivorceOnline.com is aimed to help couples attempting a DIY divorce handle the red tape. With years of experience in online divorce, we provide only top-notch documents and help fill them out in the shortest terms.
- If you and your spouse file a Joint Petition for divorce, you can benefit from our services and prepare all the required divorce paperwork with minimum cost and effort. In addition, you will get step-by-step filing instructions on how to start the case in your local court.
Frequently Asked Questions:
1A divorce (no-fault and uncontested) is relatively fast. On average, it takes 90 to 120 days due to the mandatory Nisi Period. 1B divorce takes longer because of the six-month waiting period and the time required for the service process.
The general principle of any divorce is the fewer disputes between the spouses, the cheaper the process. Thus, the average cost of uncontested Massachusetts divorce can vary from $200 (considering court filing fee and assuming the spouses attempt a DIY divorce without an attorney and don't seek specific advice or use additional services, like online divorce, etc.) to $6000. The typical cost of a contested case ranges between $6,000 to $12,000 in Massachusetts.
If an individual cannot afford court fees, they may file an Affidavit of indigency, asking the court to file for divorce for free. However, this fee waiver does not exclude other divorce costs, such as legal advice or some assistance with paperwork. To reduce the expenses, the spouses filing for an uncontested divorce can take advantage of cheap online divorce document preparation services or contact Probate and Family Court Self-Help Center.
Legal forms needed to be filed include but are not limited to Joint Petition for Divorce (CJD-101A) (or Complaint for divorce (CJD-101)), Affidavit of irretrievable breakdown, Separation Agreement, Affidavit disclosing care or custody proceeding (OCAJ-1 TRC IV) (or Affidavit of Care and Custody (OCAJ-1)), Record of Absolute Divorce (R-408).