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1A DIVORCE FILING INSTRUCTIONS
A. Papers needed in all 1A Divorces
1. Joint Petition for Divorce – signed by both parties 2. Affidavit of irretrievable Breakdown – Signed by both parties. “Signed this __ day, 2020 under pains and penalties of perjury.” 3. Separation Agreement – signed by both parties with each signature notarized. This must address the issues of the division of marital property, proper provisions for alimony (even if it is not requested by either party), custody, support and maintenance of any minor children. MWI encourages the parties to sign and notarize thee copies of the Separation Agreement. One for each party to keep and one for the court. Parties should bring their copy with them when they attend court for the 1A hearing. 4. Certified Copy of Marriage Certificate - From the town/city where married. 5. Financial Statements – Each party must file a statement and all lines must be filled out completely. Even if there are no children, this form must be completed by both parties. 6. R-408 Statistical Form 7. Request for Assignment Form 8. Filing Fee of $215.00 – Payable by Money Order or Bank Check. Personal Checks and Cash will not be accepted.
B. Additional Requirements in 1A Divorces with Minor Children (under 18 years of age)
9. Affidavit Disclosing Care and Custody of a Child 10. Child Support Guidelines Worksheet(s) 11. Parent Education Certificate
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What Clients Can Expect After Filing
Once you file all your papers with the Court, these papers must be processed. Processing your petition and other papers means that your case needs to be indexed, assigned a docket number, file stamped, docketed into the official court docket, and money needs to be documented and forwarded into the State's Account.
The request for assignment then goes to the Trial Department to be scheduled for a hearing. All papers above MUST be filed in order for the Trial Department to schedule a hearing. If any paper is not filed, including the Parent Education Certificate, your request for assignment will be returned to you and no hearing will be scheduled. If all papers have been filed, you should receive a hearing notice in the mail stating your Uncontested Trial date.
The Notice of Uncontested Trial will tell you when your court date will be. It generally takes approximately 2 to 4 weeks for a Court Date, provided all papers and certificates are received by the Court. If you do not receive your Notice for a court date within 2 weeks after you file, and you have filed all the appropriate papers, including the Parent Education Certificates, you should contact the court.
Thirty days after the Judge approves the separation agreement, a Judgment of Divorce Nisi will issue. The divorce will become final ninety days after the issuance of the decree nisi. A Certificate of Divorce Absolute can be obtained from the Court on the day after the divorce becomes final for a fee of $20.00. The Certificate of Divorce Absolute can be requested by filling out the “Request for Copies” form and forwarding it to the Court with your bank check or money order of $20.00.
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PRACTICE XXXIII. STANDARDS FOR COMPUTER GENERATED FORMS
Preamble: This Uniform Practice governs the use of computer-generated forms by counsel and parties.
Definition: For the purposes of this Uniform Practice XXXIII, the “official form” shall be defined as either: (i) the paper form promulgated and distributed by the Administrative Office of the Probate and Family Court or (ii) the electronic form most recently posted on the Massachusetts Judiciary web site, www.mass.gov/courts and approved by the Administrative Office of the Probate and Family Court.
I. Use. The use of computer-generated forms is hereby permitted, except where the Court blank (“official form”) is a multi-part form, such as the G.L. c. 209A Complaint For Protection From Abuse form.
II. Specifications. A. Paper. 8 ½ x 11 inch, acid free paper shall be used for all computer-generated forms. Acid free paper is specified to ensure archival quality and permanence.
B. Paper and Ink Color. A computer-generated form shall be printed with black ink on white paper except for forms CJ-D 301 S Financial Statement (short form) and CJ-D 301 L Financial Statement (long form), which shall be printed with black ink on pink colored paper, and form CJ-D 304 Child Support Guidelines Worksheet shall be printed with black ink on yellow colored paper.
C. Printing. All computer-generated forms shall be printed with “letter quality” or “near letter quality” output. “Draft” quality output is not acceptable.
III. Consequences of Failing to Follow These Standards. The Register of Probate may reject any form that fails to comply with these standards. In the event that a Register deems a submitted form to be outside these standards, such determination may be reviewed by the Chief Justice of the Probate and Family Court at the request of the submitting counsel or party. It is the responsibility of the submitting party to ensure that the form adheres to the above standards. If the form is rejected, the submitting party shall forfeit the filing fee. The submitting party’s attorney shall not be allowed to pass this cost on to his/her client, but shall bear the financial burden personally. Accordingly, the submitting party’s attorney shall either reimburse the client for the forfeited fee or the attorney shall personally pay the filing fee when he/she refiles the form.
Adopted effective January 1, 1992. Amended effective January 1, 2009.
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Reporter’s Notes – December, 2008
The December 2008 amendment to Uniform Practice XXXIII requires that form CJ-D 304 Child Support Guidelines Worksheet be printed with black ink on light-blue colored paper. The change was necessitated by the amendments to the Child Support Guidelines effective January 1, 2009.
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Commonwealth of Massachusetts The Trial Court Probate and Family Court Department
STANDING ORDER 4-08 PARENT EDUCATION PROGRAM ATTENDANCE
This court finds that the interests of the minor children of parties appearing before it would be well served by educating their parents about children’s emotional needs and the effects of divorce on child behavior and development.
IT IS HEREBY ORDERED THAT:
1. All parties to a divorce action in which there are minor children, are ordered to attend and participate in an approved Parent Education Program (hereinafter, program) except as herein provided. This requirement applies to divorces brought under Ch. 208 sec. 1 (fault divorces); and Ch. 208 secs. 1A and 1B (irretrievable breakdown) and as ordered by a judge of this court in an action to establish paternity, complaints for modification or contempt or in any case involving visitation, custody, or support of minor children.
2. Attendance at an approved program is mandatory for parties to such actions unless waived by the court. Parties must register with an approved provider within sixty days (60) days of service of the original complaint upon the original defendant and attend the next available session.
3. No Pre-trial Conference or Trial will be held by the court until the court receives a certificate of attendance from an approved program for each party, or waives the requirement. An uncontested divorce hearing may be scheduled pending attendance if the parties file confirmations of registration with the court and so long as both parties complete the program prior to the hearing. A Pre-Trial Conference in a contested case may be similarly scheduled so long as the parties complete the program prior to the Pre-Trial Conference.
4. The court may waive the attendance requirement upon motion, with notice, for one or both parties. Waivers will only be granted upon a demonstrable showing of chronic and severe violence which negates safe parental communication; language barriers; institutionalization or other unavailability of a party; failure of the other party to complete a program; unavailability of an approved program in the county in which the original divorce brought under Ch. 208 sec. 1 and Ch. 208 secs. 1A and 1B was filed; or where justice otherwise indicates.
5. Sanctions for failure to register with an approved program within sixty (60) days of service of the original complaint upon the original defendant may be imposed by the court.
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6. The parties must attend programs approved by the Chief Justice of the Probate and Family Court. Attendance at an approved program, wherever held within the Commonwealth, is permissible. Programs which are not approved by the Chief Justice will not satisfy the attendance requirement. Program vendors will ensure that parties to an action do not attend the same session of any program. Lists of approved programs shall be available at all Registries of Probate and at: www.mass.gov/courts/court-info/trial-court/pfc/pfc-parent-education-providers.html
7. A pamphlet entitled Parent Education Programs: Understanding the Effect of Divorce on Children, which lists the approved program providers shall be given to the plaintiff or his/her attorney upon the filing of a complaint for divorce involving minor children. The plaintiff or his/her attorney shall serve a copy of said pamphlet along with the complaint and summons to the person authorized to make service pursuant to Mass.R.Dom.Rel.P. 4(c).
8. The parties shall each pay $80.00 to the provider in advance of the program to offset the cost of materials and facilitators.
9. A party may pay a reduced fee of $5.00 to the provider if that party has submitted and had allowed an “Affidavit of Indigency and Request for Waiver, Substitution or State Payment of Fees and Costs.” This form is prescribed by the Chief Justice of the Supreme Judicial Court pursuant to G.L. c. 261, § 27B, promulgated March, 2003 and is available at the Registry of the Probate and Family Court. The party must submit a copy of this form to the provider when registering for a program at a reduced fee of $5.00.
10. Nothing herein shall be construed to limit the authority of any Probate and Family Court justice to order parties to attend an approved program in any case involving visitation, custody, or support of minor children.
11. All information submitted in compliance with the research component of the program shall be the work product of the Probate and Family Court Administrative Office. The material is for research purposes only and shall not be discoverable.
April 7, 2008 //PMC Date Paula M. Carey Chief Justice
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Mandatory Self Disclosure Massachusetts Supplemental Probate Court Rule 410 effective 5/1/2009
(a) Initial Disclosures.
(1) Except as otherwise agreed by the parties or ordered by the court, each party to a divorce action, each party to a complaint for separate support, and each parent who is a party to an action under Chapter 209C that includes a claim for child support where paternity has already been adjudicated or where the parents have completed a notarized voluntary acknowledgment of paternity shall deliver to the other party or parties within 45 days from the date of service of the summons the following documents:
(a) The parties' federal and state income tax returns and schedules for the past three (3) years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to W-2's, 1099's 1098's, K-1, Schedule C and Schedule E.
(b) The four (4) most recent pay stubs from each employer for whom the party worked.
(c) Documentation regarding the cost and nature of available health insurance coverage.
(2) Except as otherwise agreed by the parties or ordered by the court, each party to a divorce action and each party to a complaint for separate support shall also deliver to the other party within 45 days from the date of service of the summons the following documents:
(a) Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).
(b) Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401financial statement.
(c) Copies of any loan or mortgage applications made, prepared or submitted: by either party within the last three (3) years prior to the filing of the complaint.
(d) Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint.
(b) Additional Disclosures.
(1) Except as otherwise agreed by the parties or ordered by the court, each party to an action under Chapter 209C that includes a claim for child support where paternity has already been
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adjudicated or where the parents have completed a notarized voluntary acknowledgment of paternity may serve on a parent who is a party to the action a separate written request entitled "Request for Additional Rule 410 Documents," and the parent served shall, within 45 days from the date of service of the request, deliver to the other party or parties the documents set out in (a)(2)(a)-(d)above.
(2) When a request for child support is first added to an action under Chapter 209C by counterclaim or by amendment of the complaint, a party may serve on a parent who is a party to the action a separate written request entitled "Request for Rule 410 Documents," and the parent served shall, within 45 days from the date of service of the request, deliver to the other party or parties the documents set out in (a)(J)(a)-(c) above.
(3) The parties shall supplement all disclosures as material changes occur during the progress of the case. No party required to deliver documents under this Rule shall be permitted, to file any discovery motions prior to making the initial disclosure as described herein, and no party to a divorce or separate support action shall be permitted to file any discovery motions prior to making both the initial and the additional disclosures as described herein.
(c) Unavailability of Documents.
In the event that either party does not have any of the documents required pursuant to this Rule or has not been able to obtain them in a timely fashion, he or she shall state in writing, under the penalties of perjury, the specific documents which are not available, the reasons the documents are not available, and what efforts have been made to obtain the documents. As more information becomes available there is a continuing duty to supplement.
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PRINCIPLES OF MEDIATION
INFORMED CONSENT affirms the parties' right to information about the mediation process, their legal rights and legal and social service options before consenting to participate in mediation or to the terms of any agreement reached in mediation.
SELF-DETERMINATION recognizes that parties to a dispute have the ability and right to define their issues, needs and solutions and to determine the outcome of the process without advice or suggestions from staff or mediators. The parties have the final say as to the terms of any agreement reached in mediation.
IMPARTIALITY/NEUTRALITY affirms the parties' right to a process that serves all parties fairly and equally and to mediators who refrain from perceived or actual bias or favoritism, either by word or deed.
CONFIDENTIALITY guarantees that all information received from the parties will be kept within the Program, freeing parties to explore the issues and potential solutions. Any exceptions to this guarantee shall be made clear to the parties prior to their consent to participate in mediation.
VOLUNTARINESS acknowledges the parties' right to freely enter both the mediation process and any agreement reached in that process. The parties have a right to withdraw from mediation at any time. Mediators can also withdraw from the process, if necessary.
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A Style Index for Mediators by Jeffrey Krivis and Barbara McAdoo
Prof. Leonard L. Riskin of the University of Missouri-Columbia School of Law has written extensively about mediators and the mediation field. Most recently his work has focused on developing ways to characterize the many different styles of mediators.
In 1994, Riskin explained in Alternatives the ideas used to develop this article's Mediator Classification Index. [See Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives 111 (September 1994). Riskin elaborated on his classification system in Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harvard Negotiation L. Rev. 7 (1996).] His theory on mediator style focuses on (1) how mediators view their role, as "evaluative" or as "facilitative," and (2) how mediators define the problem, "narrow" or "broad." The result is a four-quadrant grid keyed to these two style focuses and containing areas pertaining to mediator styles: Evaluative Narrow, Evaluative Broad, Facilitative Narrow, and Facilitative Broad.
Based on Riskin's work, we have developed the self-scoring MCI. It is designed to assist mediators in understanding the particular approach or style that they tend to use during the mediation process.
Understanding style is crucial to improving mediator performance. It allows a mediator to select from a spectrum of techniques that might be available depending on the nature of the issues presented. It also makes it simple for the mediator to explain to the disputants why a particular approach might be used in resolving the dispute.
Although the MCI is still a work-in-progress and is not a standardized testing instrument, many are finding it to be a useful tool to create an awareness of the stylistic options available to mediators.
In developing the MCI, we first used expert panels in Minnesota and California to analyze the content validity of questions below. For example, did the questions measure what they were supposed to measure relative to factors used by Riskin in his original grid? After revisions, a 48- item MCI was made widely available and used throughout the country by hundreds of mediation trainees. Using a statistical package on a sample of 224 completed instruments, the scales were "purified" and reduced. Finally, after analyzing written and verbal feedback received from mediation trainers and trainees, the MCI was revised to its current 26-item format. To continue the instrument's development, we invite additional feedback from Alternatives' readers.
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Explaining the Quadrants
The differences between the types of mediators on the grid are significant. According to Prof. Riskin, "the principal strategy of the Evaluative-Narrow mediator is to help the parties understand the strengths and weaknesses of their positions and the likely outcome at trial. To accomplish this, the Evaluative-Narrow mediator typically will first carefully study relevant documents, such as pleadings, depositions, reports and mediation briefs. Then, in the mediation, she employs evaluative techniques … which are listed from most to least evaluative."
The Facilitative-Narrow mediator "plans to help the participants become realistic about their litigation situations. But he employs different techniques. He does not use his own assessments, predictions or proposals. Nor does he apply pressure. Moreover, he probably will not request or study relevant documents, such as pleadings, depositions, reports or mediation briefs. Instead, because he believes that the burden of decision should rest with the parties, the Facilitative-Narrow Mediator might ask questions—generally in private caucus—to help the participants understand both sides' legal positions and the consequences of non-settlement."
The Evaluative-Broad mediator "helps the parties understand their circumstances and options. However, she has a different notion of what this requires. So she emphasizes the parties' interests over their positions and proposes solutions designed to accommodate these interests. In addition, because the Evaluative-Broad Mediator constructs the agreement, she emphasizes her own understanding of the circumstances at least as much as the parties'."
The Evaluative-Broad mediator "also provides predictions, assessments and recommendations. But she emphasizes options that address underlying interests, rather than those that propose only compromise on narrow issues."
The Facilitative-Broad mediator "seeks to help the parties define, understand and resolve the problems they wish to address. She encourages them to consider underlying interests rather than positions and helps them generate and assess proposals designed to accommodate those interests."
After taking the test below, the box at the end explains the scoring method, which will place you on the grid. Where you are on the grid provides a snapshot of your natural tendencies as a mediator. It does not necessarily limit your ability to move around the grid by using different strategies and techniques depending on the circumstances of the case.
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Instructions
Review each statement below from the perspective that you are a mediator, and indicate the extent to which you agree or disagree by checking the appropriate box and recording the score. When you are finished, follow the accompanying Self-Scoring Instructions.
MCI'S Problem Definition
This section of the survey concerns the goals of a mediation. The statements are designed to measure the scope of the problem(s) that the mediation seeks to address or resolve.
1. I encourage the parties to focus on resolving the specific, legal problems.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
2. I prefer to look beyond the legal issues in defining the problem to be resolved.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
3. I am inclined to consider the parties' interests more important than the legal issues in defining the problems to be resolved at the mediation.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
4. The focus of the mediation session is on legally relevant issues.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
5. In learning about the issues of the case, it is important to understand the legal posture of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
6. I urge the parties to compromise on narrow issues.
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Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
7. I tend to decide how I will approach a case based on the legal documents, technical reports or legal briefs.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
8. Even when the lawyer is present at a mediation, I ask the client to discuss the personal impact of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
9. The interests of the parties are more important to me than settling the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
10. The parties' perception of the conflict is not as important to me as the actual evidence of the case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
11. I view the mediation as an opportunity to help the parties understand each others' perception of the dispute.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
12. My role is to help parties understand and reach settlement on the issues set forth in the legal documents.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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13. Generally, parties are more capable of understanding their situations better than either lawyers or mediators.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
MCI'S Role of the Mediator
This section of the survey concerns the mediator's activities. It measures the strategies and techniques that the mediator employs in attempting to address or resolve the problems that are the subject matter of the mediation.
14. I provide parties with direction as to the appropriate grounds for settlement (e.g., law, industry practice or technology).
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
15. To help parties negotiate realistically, I find it helpful to give an advisory opinion about the likely outcome of a case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
16. My principal strategy is to help parties understand the strengths and weaknesses of their legal positions.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
17. I use the parties' relevant documents, pleadings, reports and legal briefs to help them look realistically at their case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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18. The principal technique I use is to encourage the parties to explore the likely outcome at trial.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
19. A principal strategy I use is to suggest a particular settlement proposal or range to the parties.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
20. I use private caucuses early to help the parties understand the weaknesses of their case.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
21. I do not have to understand the legal posture of the case to serve as the mediator.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
22. I focus on the process as opposed to the outcome of a mediation.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
23. I prefer joint sessions over private caucuses.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
24. Developing options for settlement is the responsibility of the parties, not the mediator.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
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25. I must have expertise in the subject matter of the dispute.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
26. I do not consider it my responsibility to protect legal rights and responsibilities of the parties.
Strongly Agree Strongly Disagree
1 2 3 4 5 6 7 8 9 10
Self-Scoring Instructions How To Determine Your Personal Mediator Classification:
1. Add together all of your Problem Definition scores.
2. Divide that total number by 13. This is your mean Problem Definition score.
3. Add together all of your Role of Mediator scores.
4. Divide that total number by 13. This is your mean Role of Mediator score.
5. Go to the Mediator Classification Index (MCI) below.
6. On the Problem Definition axis (the bottom horizontal axis) locate the point that corresponds to your mean Problem Definition score. Draw a vertical line from that point all the way to the top of the Index.
7. On the Role of Mediator axis (the left vertical axis) locate the point that corresponds to your mean Role of Mediator score. Draw a horizontal line from that point all the way across the MCI.
8. The point at which the two lines intersect will be in the area of the MCI that indicates your personal mediator orientation.
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Krivis is a mediator and arbitrator in private practice in Los Angeles. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine University School of Law in Malibu, Calif., and is past-president of the Southern California Mediation Association. He maintains an Internet site at www.firstmediation.com. His E-mail address is [email protected]. McAdoo, a member of the CPR Commission on Ethics and Standards of Dispute Resolution Practice, is a professor at Hamline University School of Law in St. Paul, Minn., and the director of the Hamline Dispute Resolution Institute. Her E-mail address is [email protected].
The CPR Institute for Dispute Resolution is a New York-based nonprofit initiative of 500 general counsel of major corporations, law firms and legal academics in support of private alternatives to the high costs of litigation. Organized in 1979, CPR develops new methods to resolve business and public disputes by alternative dispute resolution.
DISCLAIMER: This web page was developed by the Consortium for Appropriate Dispute Resolution (CADRE), a project of Direction Service, Inc., Eugene, Oregon, pursuant to Grant No. 326D980002 with the U.S. Department of Education, Office of Special Education and Rehabilitative Services. The materials on this page were developed by others and the opinions expressed therein do not necessarily reflect the position or policy of the U.S. Department of Education, and no endorsement by the U.S. Department of Education should be inferred.
http://www.directionservice.org/cadre/krivis2.cfm - used with permission.
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Peeling the Onion: Divorces Within Divorce
Many people experience divorce as a process characterized by dramatic changes. These changes embody a variety of separations, or divorces, within the broad context of legal divorce. Like the layers of an onion, some of these changes are readily visible, while others are deep beneath the surface. Some layers involve substantive issues that must be addressed in the mediation. For example, financial changes forming the layer of economic divorce might involve the division of personal property. Other layers involve issues that the parties may wish to discuss, such as regret embedded in the layer of emotional divorce. The layers of divorce in a divorce onion might include:
a) Social Divorce d) Family Divorce g) Emotional Divorce b) Physical Divorce e) Sexual Divorce h) Parental Divorce c) Legal Divorce f) Economic Divorce i) Companion Divorce
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Legal Reasons / Grounds for Divorce Fault and No Fault Divorces
There are two "no fault'' grounds and seven ''fault'' grounds for divorce in Massachusetts. Most divorces in Massachusetts are filed under "no fault'' grounds.
When you file for divorce, you will need to choose a legal reason for the divorce which fits the facts of your situation. Legal reasons for divorce are called the "grounds for divorce."
"No Fault" Divorces
A "no fault" divorce is a divorce in which the marriage is broken beyond repair but neither party wants to blame the other. The legal term for a "no fault" divorce is an irretrievable breakdown of the marriage." There are two ways to file a divorce based upon an irretrievable breakdown of the marriage. These are often referred to by the section of Massachusetts General Laws Chapter 208 in which they are found. They are as follows:
1A- Irretrievable Breakdown of the Marriage
In this type of divorce both parties participate in the filing of a document called a Joint Petition for Divorce. In order to file for this type of divorce, you must have reached an agreement as to all issues (for example, custody, visitation, child support, alimony, division of property and debts, and health insurance coverage.) This agreement is called a Separation Agreement. When you file the Joint Petition for Divorce, you file your Separation Agreement (which each of you sign before a separate notary) and a document called an Affidavit of Irretrievable Breakdown of the Marriage. An "Affidavit of Irretrievable Breakdown" is a statement made under oath which states the reasons the marriage is irretrievably broken down and states whether or not there is any chance you will reconcile. You should list any efforts you have made at reconciliation in this Affidavit.
There are other documents required to be filed with the Joint Petition for Divorce. These documents will be provided to you in your Joint Petition packet which is available in the Registry Office of the Probate and Family Court Department.
As soon as all of the required documents are filed, the court will schedule a hearing before the judge.
1B- Irretrievable Breakdown of the Marriage
In this type of divorce, one party files a document called a Complaint for Divorce claiming "irretrievable breakdown of the marriage." This type of no fault divorce is used when you do not have an agreement. It may be used if you are unable to reach an agreement as to all issues (for example, custody, visitation, child support, alimony, division of property and debts and health insurance coverage,) or if the other party does not agree that there is an irretrievable
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breakdown of the marriage. There is a six-month waiting period before a final hearing on this type of divorce can be held.
A Separation Agreement and Affidavit are not required at the time of filing the Complaint for Divorce and you will be required to have a summons "served" (which means "delivered") on the other party by a sheriff.
There are other documents which must be filed with the Complaint for Divorce. These documents will be provided to you in your Complaint for Divorce packet which is available at the Registry Office of the Probate and Family Court Department.
"FAULT" GROUNDS FOR DIVORCE
There are seven "fault" grounds for divorce in Massachusetts. They are seldom used. They are as follows:
CRUEL AND ABUSIVE TREATMENT
This is the most common "fault" ground for divorce in Massachusetts. In order to be divorced on this basis, you need to prove to the judge that your spouse did something which caused you harm. This ground for divorce is sometimes used in situations of domestic violence.
UTTER DESERTION CONTINUED FOR ONE YEAR
In order to be divorced on this basis, you need to prove to the judge that your spouse left home voluntarily, that she or he has no intention of returning home and that she or he has not lived with you for a least one year prior to the date the complaint for divorce was filed.
SENTENCE OF CONFINEMENT IN A PENAL INSTITUTION
In order to be divorced on this basis you need to prove that your spouse has been sentenced to prison for life or for five years or more. This ground is based upon the length of the sentence, not the actual time spent in prison.
GROSS AND CONFIRMED HABITS OF INTOXICATION CAUSED BY VOLUNTARY AND EXCESSIVE USE OF INTOXICATING LIQUOR, OPIUM OR OTHER DRUGS
In order to be divorced on this basis you need to prove your spouse has voluntarily and excessively used drugs or alcohol in such a way that is has become a pattern.
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GROSS OR WANTON AND CRUEL REFUSAL OR NEGLECT TO PROVIDE SUITABLE SUPPORT AND MAINTENANCE FOR THE OTHER SPOUSE
In order to be divorced on this basis you need to prove that your spouse has refused or neglected to provide support or maintenance for you and that she or he has the ability to provide said support
ADULTERY
In order to be divorced on this basis you need to show that your spouse had sexual intercourse during the marriage with someone other than you. You will have to prove that sexual intercourse occurred, which makes this a difficult ground on which to obtain a divorce.
IMPOTENCY
This ground is rarely used. In order to be divorced on this basis you need to prove that your spouse is incapable of having sexual intercourse.
Deciding on a basis for your divorce can be very complicated. If you have questions about the grounds for divorce and what you need to prove, you should seek legal advice from an attorney.
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COMMON LEGAL TERMS
Abandonment See Desertion.
Abuse See Cruel and Abusive Treatment.
Abuse Prevention See Restraining Order.
Abuse Prevention Statute Chapter 209A of the Mass. General Laws.
Action; Actionable See Cause of Action, Claim.
Admissible; Admissibility Any testimony, document, or demonstrative material officially considered by the court, i.e., allowed into evidence, generally in compliance with the rules of evidence.
Admissions; Requests for One party to a case can require the other party to admit or deny Admissions in writing and under oath various assertions.
Adultery Sexual intercourse between a married person and a third party. One of seven fault grounds for divorce is Massachusetts, but rarely used.
Affidavit A written statement, voluntarily signed under oath, usually in support of a motion.
Affidavit Disclosing Care or An official form courts require to be filed by the plaintiff in all Custody Proceeding divorces involving minor children of the marriage.
Agreement See Separation Agreement.
Alienation of Affection Any intentional, malicious interference with a marital relationship; not recognized by the Massachusetts courts.
Alimony Spousal support sometimes paid by agreement of the parties or by court order. Alimony Laws in MA were updated and went into effect during March of 2012.
Annulment The court’s judgment that a so-called “marriage” was never legally valid or invalid after the marriage.
Answer to Complaint and A responsive pleading that answers allegations made in the Counterclaim complaint. A counterclaim sets forth the defendant’s allegations
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against the plaintiff, as if the defendant were asking for a divorce in the first instance. The defendant is sometimes called the “plaintiff-in-counterclaim” since he or she makes his or her initial claim in this pleading.
Antenuptial Agreement See Prenuptial Agreement.
Appeal Review of a trial court’s decision and judgment by a higher court. The appeals court can review the trial court’s “findings of fact” and “conclusions of law.” See Decision and Judgment.
Appear; Appearance; File A court filing registering the name of your lawyer, or, if you an Appearance represent yourself, your name as “pro se.”
Arbitration A legally binding, non-judicial procedure held before a neutral third party, the “arbitrator,” who acts as private judge;
Arrearages The deficiency between the amount, if any, paid and the amount required under court order. If payments are made voluntarily on a de facto basis, i.e., not under court order, any reduction in the amount of such payments is not considered an arrearage.
Assented to Motion A motion agreed to in writing by the other party. An “unopposed” motion is simply not opposed by the other party, but not agreed to in writing.
Assignment of Property Same as equitable division of property
Attachment; Motion for A lien on personal or real property created by court order Attachment (formerly known as a writ of attachment) in response to a motion for attachment.
Attorney for the Child(ren) A court-appointed attorney who represents the stated wishes of the child(ren). Unlike a guardian ad litem who acts in the child’s best interest by substituting her own judgment for the child’s, the attorney for the child(ren) must advocate those causes espoused by the child(ren) and generally not substitute his or her own judgment.
Automatic Wage See Wage Assignment. Withholding
Bankrupt; Bankruptcy The inability of a person to pay bills as they become due. Also, a
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person’s legal status in federal bankruptcy court. Alimony and child support are generally not affected, but property divisions, including the marital home may be affected.
BBO See Board of Bar Overseers.
Bench Trial A judicial hearing before a judge without a jury. In Massachusetts, all divorce trials are bench trials.
“Best Interest” of the Child The legal standard or doctrine for making child-related decisions.
Board of Bar Overseers A regulatory board appointed by the Supreme Judicial Court and charged with regulating the legal profession in Massachusetts.
Bomber An old term to describe an unethical divorce lawyer who sleeps with his clients.
Brief A document written in support of a motion.
Burden of Proof The party asserting a claim must prove such claim is true—in civil cases the party must prove the claim by a preponderance of evidence. In criminal cases, proof must be beyond a reasonable doubt.
Cannons of (Legal) Ethics Ethical rules established by the Supreme Judicial Court that regulate the behavior of lawyers. Violations can lead to warnings, fines, suspensions, and even license revocation.
Capias A civil arrest warrant ordering the sheriff or other officer to take a person into custody and deliver him or her to court. This procedure is used when a party refuses to appear in court.
Cause of Action; Claim A lawsuit. To bring an action (lawsuit). Certain wrongful acts are actionable offenses, meaning that such acts are the grounds for a lawsuit, i.e. they create a cause of action.
Chalk A chart or mock-up submitted to the court to demonstrate a point, but not formally introduced as evidence.
Change of Venue See Venue; Change of Venue.
Child Abduction See Parental Kidnapping.
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Child Custody See Custody – Legal and Custody – Physical.
Child Support Court-ordered or voluntary payments from the non-custodial parent to the custodial parent, not tax deductible by the paying parent, nor includeable in the recipient parent’s taxable income. Child Support Guidelines State guidelines requiring the non-custodial parent, under normal circumstances, to pay child support based on a percentage of gross income. Child Support Worksheet A court form to calculate the child support guidelines that is required in all cases involving children.
COBRA (Consolidated Federal legislation that guarantees all persons covered by medical Omnibus Budget insurance, the right, for a monthly fee, to continue coverage even Reconciliation Act) if employment or marital status changes.
Cohabitation Unmarried persons living together as if married.
COLA Cost of living adjustment.
Commencement of Action The official beginning of your case, defined as the time of filing your complaint for divorce.
Common Law A body of law, sometimes referred to as “case law,” developed by judges over many years which establishes how courts interpret statutes and handle matters not specifically covered by statutes.
Common Law Marriage A judicially-recognized marriage (but not recognized in Massachusetts) generally based on cohabitation.
Community Property A system of property division (not used in Massachusetts) which divides equally all property—no matter in whose name it is held— acquired during the term of the marriage, excluding inheritances and gifts in some jurisdictions.
Complaint for Divorce A complaint for divorce initiates the divorce proceeding by identifying the parties; stating the grounds for divorce; stating all claims against the defendant; and requesting the court to grant a divorce, grant custody, divide property, and order support. All complaints must be filed with the Probate and Family Court with a $110 fee.
Conflict of Interest (Rules) Lawyers are prohibited from entering certain relationships in
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which the lawyer, by virtue of his profession, received or appeared to receive confidential information about the opposing party. No lawyer can ever represent both sides in a divorce, even if uncontested.
Consolidation The joining of two related cases.
Constable A private individual who is legally empowered to serve process. Constructive Service of The service of process through alternative means such as Process publication in a newspaper when the defendant resides out of state or whose whereabouts are unknown.
Contempt of Court, Legal action brought when the plaintiff alleges a willful failure to Complaint for obey a court order or judgment.
Contested and In contested divorces, the parties are adversarial, they cannot Uncontested Divorce agree on the terms of divorce, such as alimony, custody, visitation, child support, and division of assets. In uncontested divorces, the parties agree to all matters, and present an executed separation agreement to the court for approval.
Whether a divorce is contested or uncontested should not be confused with whether the divorce is fault or no-fault. The following illustrates the difference:
Contested Fault: grounds and property and/or support are in dispute; trial necessary if not settled No-Fault: property and/or support in dispute; if no agreement is reached, the case goes to trial
Uncontested Fault: unusual since uncontested divorces avoid conflict; insisting on fault destroys the cooperative nature of uncontested matters No-Fault: signed agreement presented to the court for its approval
Contingency Fee In divorce cases, an unethical type of fee agreement providing the lawyer with a percentage of your settlement or judgment.
Co-Respondent A third-party co-defendant in a divorce action accused of committing adultery with the defendant.
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Counsel Fees Pendente “Pendente Lite” means during the litigation. Generally, a motion Lite, Motion for is filed by the wife requesting sufficient funds from the husband, or from the marital estate, to prosecute or defend the divorce action.
Counterclaim See Answer and Counterclaim.
Court The term “court” has three meanings: (1) a physical place, e.g., courtroom, courthouse; (2) a quasi-political entity, e.g., the Probate and Family Court; and (3) the actual judge or justice acting in his or her official capacity.
Court of Appeals The appellate court for divorce matters whose decisions are reviewable by the Supreme Judicial Court. Court Docket The formal court record of all pleadings, orders, and judgments entered into a docket book available for public inspection.
Court Order A written instruction from the court carrying the weight of law, i.e., the knowing violation of which constitutes contempt of court. Courts of Equity See Equity; Courts of Equity.
Coverture The period of time during which a women is married.
Cross-examination Following the direct examination of a witness by a lawyer, cross examination is the follow-up questioning by the opposing lawyer.
Cruel and Abusive Ground for divorce in a fault divorce, wherein the plaintiff must Treatment prove physical or emotional harm to her or himself.
Curtesy See Dower.
Custodial Parent Usually refers to the parent with whom the child(ren) reside(s), i.e., the parent with sole or primary physical custody.
Custody - Legal A legal status or “custodianship” vesting authority to approve all major decisions affecting a minor child. Chapter 208, Sec. 29 defines legal custody as follows:
Sole Legal Custody: one parent shall have the right and responsibility to make decisions regarding the child’s welfare including matters of education, medical care and emotional,
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moral and religious development.
Joint Legal Custody: continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care, emotional, moral and religious development.
Sometimes separation agreements use terms such as joint legal custody, meaning shared legal custody.
Custody - Physical Relates to the physical location of the child. Chapter 208, Sec. 29 defines physical custody as follows:
Sole Physical Custody: a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
Joint Physical Custody: a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
Such terms as “sole,” “primary,” “shared,” and “joint” are used to describe various parenting and visitation plans.
Decision and Judgment A decision is a judge’s “finding of facts” and “conclusions of law.” The decision forms the factual and legal basis of the court’s judgment.
Decree Absolute See Judgment Absolute and Final Judgment.
Decree Nisi See Judgment Nisi.
De Facto Latin meaning “in fact.” Acting in a certain manner, usually as if complying with what a court might order, without such order being in place. For instance, if one parent is making voluntary child support payments pursuant to the guidelines, he or she is paying de facto guideline support, even though no court has so ordered.
Department of Children The Massachusetts agency responsible for the health and welfare
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and Families of children. Department of Revenue The Massachusetts agency responsible for child support enforcement.
Department of Social Was the Massachusetts agency responsible for the health and Services welfare of children. The name was changed during July of 2008 to the Department of Children and Families
Deposition An oral examination taken under oath before a stenographer, usually at the attorney’s office who requests the deposition. Any person, whether a party to the case or not, can be called to a deposition, provided they have relevant evidence to give. The notice requesting the deposition may also contain a list of documents to be produced at the deposition. See Discovery; Pretrial Discovery.
Deposition Subpoena A subpoena requiring the named-person to attend a deposition.
Desertion One of several grounds for a fault divorce. Massachusetts requires the plaintiff to prove several of the following factors: 1) the defendant left the marital home for over one year; 2) the parties failed to agree to such departure; 3) the party who left failed to pay support; and 4) the reason for the departure was not caused by the plaintiff.
Discovery; Pretrial Discovery is the formal procedure for gathering information Discovery pursuant to rules of court. The primary methods are requests for financial statements under Supp. Rule 401, requests for production of documents, written interrogatories, depositions, and subpoenas to third parties.
Divorce Agreement See Separation Agreement.
Divorce Judgment Absolute See Judgment Absolute.
Divorce Judgment Nisi See Judgment Nisi.
Domicile A person’s “legal” home, i.e., where the person spends most of his time, or intends to return, if currently living elsewhere.
DOR See Department of Revenue.
Dower The wife’s common law right to inherit from her husband.
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DSS The name, “Department of Social Services” is no longer used. See Department of Children and Families.
Emancipation In divorce court, “emancipation” does not necessarily mean “legal majority,” i.e., 18 years old. Depending on the state and the educational status of the child, emancipation may occur between ages 18 and 23.
Equitable Division of Massachusetts is an equitable distribution state meaning that all Property property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division.
In Massachusetts under “Section 34” the judge must consider 15 mandatory factors before making an equitable property division or awarding alimony:
1. length of the marriage 2. conduct of the parties during the marriage 3. age 4. health 5. station in life (life-style) 6. occupation 7. amount of income 8. sources of income 9. vocational skills 10. employability 11. estate 12. liabilities 13. needs of each of the parties 14. opportunity of each for future acquisition of capital assets and income 15. present and future needs of the children of the marriage
The court may also consider the: 16. contribution of each of the parties in the acquisition 17. preservation or maintenance of the property 18. appreciation in value of their respective estates 19. contribution of each of the parties as a homemaker to the family unit. Equity; Courts of Equity Equity is a body of law that concerns itself more with fairness than with the strict, and sometimes harsh, application of common law.
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Ethics; Legal Ethics A code of conduct, also known as the Code of Professional Responsibility, imposed on attorneys. Violations may subject the attorney to disciplinary proceedings and malpractice claims. See Canons of (Legal) Ethics.
Evidence Any testimony, document, or demonstrative material. See Rules of Evidence.
Evidentiary Hearing See Trial; Hearing on the Merits; Evidentiary Hearing.
Exhibit(s) Any evidence attached to a pleading or introduced at trial, for example, a party’s pay stub attached to a motion for temporary support.
Ex Parte: Hearing, Motion, Ex parte means without notice to, or attendance of, the opposing Order party. The motion session of the Probate and Family Court is referred to as the “Ex Parte” Session although both parties are usually present.
Ex Parte Session In Massachusetts, family court motion sessions are referred to as Ex Parte Sessions.
Expert Witness In divorce cases, most experts are called to testify as to the value of the marital home, pensions, and privately-held businesses. In child-related disputes, mental health professionals are often called to testify.
Fair and Reasonable The judicial standard for approving separation agreements.
Family Service Office; Sometimes known as the Probation Department, this office and Family Service Officer its employees, also known as probation officers, assist the court with dispute resolution.
Fault and No-fault Divorces In fault divorces, the complaint for divorce must state grounds for divorce. They include cruel and abusive treatment, adultery, abandonment, and other types of misconduct.
No-fault complaints for divorce merely allege an “irretrievable breakdown” of the marriage. The court must find that the marriage has “irretrievably broken down,” leaving no chance of reconciliation.
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Fee Agreement; Retainer The written contract between you and your lawyer. See Agreement Contingency Fee Agreement and Success Fee Agreement for ethical problems with these types of Fee Agreements. File; Filing Any document submitted to and officially received, i.e., “docketed” by, the court.
Final Judgment See Judgment Absolute.
Financial Statement; Rule Each party must complete, file, and serve a court-furnished 401 Financial Statement financial statement.
Find; Findings After considering the evidence presented, a court or jury interprets the evidence and sets forth what it believes, i.e., finds, are the actual facts. Courts have great latitude in weighing evidence and in believing or disbelieving witnesses. The court’s findings, along with its “conclusions of law,” form the basis for the court’s decision. See Decision and Judgment.
Full Faith and Credit A term found in the United States Constitution (Art IV, Sec. 1) requiring each state to honor the legal judgments of other states.
Garnishment See Wage Assignment.
Grandparent Visitation See Visitation, Grandparent.
Ground(s) for Divorce Certain improper or troublesome behavior that constitutes a “legal reason” for the court to grant a divorce. They are: 1. Adultery 2. Cruel and abusive treatment 3. Utter desertion 4. Long-term incarceration 5. Gross and confirmed habits of intoxication 6. Non-support 7. Impotency 8. Irretrievable breakdown of the marriage (no-fault)
Guardian ad Litem A court-appointed individual who, for the purpose of pending (“G.A.L.”) litigation, puts himself or herself in the shoes of a legally incompetent person such as a minor child. He or she also investigates the matter and files a report with the court.
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Hearing on the Merits See Trial; Hearing on the Merits; Evidentiary Hearing.
Hold Harmless; Hold The contractual assumption of certain liabilities by a party who Harmless Agreement agrees: 1) not to look to the other party for assistance in satisfying such liabilities, and 2) to defend (“indemnify”) the other party against third party claims, if a third party, such as a mortgage lender, sues you.
Investigator-Attorney A court-appointed lawyer who investigates matters pursuant to judicial order and reports his or her findings to the court.
Impeach; Impeachment of Discrediting a witness by proving lies, inconsistencies in stories Testimony told, and untrustworthiness. The witness may be impeached during cross-examination or by the direct testimony or evidence of another witness. See Direct and Cross Examination.
Impoundment of Pleadings You can ask the court, via motion, to impound your papers for good cause, such as certain inflammatory matters might be read by the children.
In Camera Hearing A closed-door hearing in judge’s chambers, usually concerning sensitive child-related issues.
Infant A person who has not reached legal majority, usually 18 years of age. Also, referred to as a “minor,” or unemancipated child.
Injunction; Injunctive Relief A court order prohibiting certain activity. See Temporary Order; Temporary Restraining Order.
Innocent Spouse; Innocent Section 434(c)(1) of the Internal Revenue Code protects an Spouse Rule “innocent spouse” from tax liability if certain conditions are met: 1. A joint return was filed 2. The return contained a “grossly erroneous” error 3. The innocent spouse establishes “lack of knowledge 4. In light of all the “facts and circumstances” it would be “inequitable” to impose the tax on the innocent spouse.
Interlocutory Hearing Any court hearing at which a pretrial order or ruling is requested.
Interrogatories Interrogatories consist of written questions propounded to a person (who must be a party to the case). Answers must be in writing and made under oath pursuant to rules of court. See Discovery; Pretrial Discovery.
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Irretrievable Breakdown The legal ground for no fault divorce, also known as “1-A” divorces because they are granted under Chapter 208, Section 1A of the Massachusetts General Laws. Joint Custody See Custody – Legal and Custody – Physical.
Joint Petition When both parties ask the court to do the same thing, usually to grant a no-fault divorce.
Judgment Absolute The final judgment which automatically follows the judgment nisi waiting period.
Judgment of Divorce The court’s final judgment after expiration of the judgment nisi Absolute period. Upon this date you are legally divorced and can remarry. Generally, the final decree occurs automatically upon termination of the waiting period. Additional court filings and appearances are not required. Judgment Nisi The initial, temporary judgment of divorce. When courts grant divorces, their judgments are not final until the expiration of a statutory “waiting period” known as the nisi period. It begins when the judgment nisi enters and ends upon entry of the “judgment absolute” on the docket.
Jurisdiction The court’s legal authority to hear your case and issue legally enforceable orders and judgments. The Probate and Family Court in the county where you last lived together has jurisdiction over the divorce, unless neither party currently lives in such county.
Legal Custody See Custody – Legal.
Legal Separation Massachusetts courts do not grant legal separations, but all separations are legal in the sense that people have the right to live apart without a court order. See Separate Support for rights of separated parties where neither party files a complaint for divorce.
Legal Services Center An organization located in Jamaica Plain, MA, focusing on providing legal services to moderate- to low-income clients.
Lien; Spousal Lien on See Attachment. Marital Property
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LSC See Legal Services Center.
“Mandatory Factors” (to The factors a court must consider before making a final decision be Considered by the relating to property division and alimony. See Equitable Court) Distribution.
Marital Property In the absence of a prenuptial agreement, all property in which either party has an interest, including property acquired before marriage, inheritances, and property held in only one spouse’s name.
Marital Tort See Tort; Marital Tort; Domestic Tort.
Marriage Certificate The official certification (with raised seal) of your marriage issued by a public entity which you need to file with the court for a divorce.
Mediation An informal, voluntary process allowing parties to work with a neutral third party (the “mediator”) to develop a separation agreement. An agreement developed with a mediator is said to be a “mediated agreement.”
Memorandum of Law A legal document filed along with pleadings or other court papers setting forth your lawyer’s legal research in support of a request to the court.
Memorandum of A divorce term sheet negotiated by parties seeking a no-fault Understanding divorce, usually with the help of mediators, that will be converted into a separation agreement to be filed with the court to get a divorce. See Separation Agreement.
Modification, Complaint The legal, post-divorce procedure to change or modify a for separation agreement, or the court’s earlier decision and judgment.
Motion A written request asking or “moving” the court to grant a temporary order, or rule on a legal matter. MOU See Memorandum of Understanding. Negotiated Settlement; The parties, usually with counsel, develop a separation Negotiated Agreement agreement. These agreements are not mediated; the parties, without any neutral third-party settle their controversy through negotiation.
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Nisi See Judgment Nisi.
No-Fault Divorce See Fault and No-Fault Divorce.
Notice; Legal Notice The procedure for informing a party that a legal action or motion is pending before a court.
Nuptial Of, or pertaining to, marriage.
Order See Court Order.
Palimony Payments similar to alimony made to a former cohabitator (not recognized in Massachusetts).
The right of the state to take charge of the care and custody of Parens patrieae minor children or other legal incompetents when their health or safety so requires.
Parental Kidnapping The act of one parent illegally taking a child.
Pendente Lite Latin for “during the litigation.” See Counsel Fees Pendente Lite, Motion for.
Perjury Knowingly lying under oath.
Physical Custody See Custody – Physical.
Pleadings Includes the complaint (or petition), answer, and counterclaim.
Postnuptial Agreement Same as prenuptial agreement, but entered during the term of the marriage, often revising a prenuptial agreement.
Prejudice; With and The concept that what happens in court or by stipulation of the Without Prejudice parties will affect future proceedings. Generally, temporary orders are said to be without prejudice, which means that the parties have a right to a trial on all matters, including those decided by temporary orders. In contrast, with prejudice means that even at trial the earlier order determines the outcome. If your complaint for divorce is dismissed without prejudice, you may file again. If it is dismissed with prejudice, you may not refile.
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Preliminary Hearing Any court proceeding that occurs prior to trial.
Premarital Assets Assets acquired before marriage. These assets are part of the marital estate in Massachusetts, and are excluded from, and constitute separate property in, community property and some equitable distribution states.
Prenuptial Agreement A written, premarital contract dealing with death and divorce, setting forth the rights and responsibilities of the parties upon occurrence of these events. The agreement must be “fair and reasonable” at the time it is signed and also at the time a party seeks to enforce it.
Pretrial Conference A court-mandated meeting of all parties and counsel with the trial judge.
Pretrial Memorandum See Trial, Pretrial Memorandum.
Pretrial Order See Temporary Order; Temporary Restraining Order (TRO).
Primary Physical Custody See Custody – Physical.
Refers to evidence based on private communications made within Privilege legally recognized “confidential relationships,” such as husband- wife, attorney-client, patient-psychiatrist, and priest-penitent. It also includes the privilege against “self incrimination” which can be asserted by a party accused of adultery since adultery is still a criminal offense in Massachusetts.
Probate and Family Court The Massachusetts trial court with jurisdiction over divorce.
Probation Officer; See Family Service Office. Probation Department
Production of Documents Under a rule of court the plaintiff or defendant is allowed to demand documentary evidence to be produced by the other party. See Discovery; Pretrial Discovery.
Pro Se When a party handles his or her own case, i.e., represents himself or herself, she is said to appear “pro se.”
Proposed Findings and A document prepared by you or your lawyer and submitted to the
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Rulings; Proposed Orders, court setting forth your best case scenario, i.e., how you want the Proposed Judgment judge to find the facts and make “conclusions of law” to decide the case.
QDRO (Qualified Domestic A court order directed to a “plan administrator” or “custodian” Relations Order) allocating retirement benefits between spouses.
Recrimination If the defendant is accused of adultery, “recrimination” is the counterclaim when the plaintiff is accused of adultery, too.
Register of Probate and An elected official charged with the administration of the Probate Family Court and Family Court. The Assistant Registers, who are usually lawyers, act as court clerks.
Rehabilitative Alimony Short-term spousal support designed to help the recipient “get started” with her new life. See Alimony.
Removal (of a Minor Child) The legal proceeding brought by the custodial parent’s complaint to remove (move) the minor child(ren) from Massachusetts.
Request for Admissions See Admissions.
Request for Production of See Production of Documents. Documents
Restraining Order A temporary court order prohibiting a party from certain activities. Issued in response to a motion, restraining orders often are issued to protect marital assets and to protect against domestic violence. In many states, violating a “domestic restraining order” is a criminal offense.
Retainer Agreement See Fee Agreement.
Rules of Domestic The rules that govern court procedure or steps you must follow in Relations Procedure a court case. Rules of Evidence The statutory rules governing testimony, documents, and demonstrative materials.
SA See Separation Agreement.
Sanctions Under the Rules of Domestic Relations Procedure, courts may penalize or sanction a party or counsel for improper behavior, such as making frivolous claims withholding evidence.
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Secretion of Assets The hiding of assets.
Self Incrimination; the right The right of the accused not to admit criminal wrongdoing, against usually adultery in divorce-related cases.
Separate Property Property not considered part of the marital estate, usually in community property states, including property owned prior to the marriage and may include inheritance or gifts received during marriage. In Massachusetts, all property is marital property.
Separate Support A legal procedure brought by complaint for separate support, that allows the plaintiff to seek court orders without filing a complaint for divorce. Often used by people who have religious objections to divorce.
Separation See Legal Separation.
Separation Agreement A legally enforceable, spousal contract settling all matters.
Service; Service of Process The legal process of informing, i.e., “giving notice,” that a complaint or motion is pending.
Settlement Agreement See Separation Agreement.
Shared Legal Custody See Custody.
Sole Legal Custody See Custody.
Sole Physical Custody See Custody.
Special Master A court-appointed individual, usually an attorney, who assists the court as a private judge during certain aspects of the case, e.g., discovery.
Stipulation; Stipulated A written agreement intended to be entered as a court order Agreement upon assented to motion of the parties.
Strike; Motion to Strike Upon motion of a party, a court may remove certain pleadings and evidence from the docket upon finding such material totally irrelevant, scandalous, or without proper notice.
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Subpoena; Subpoena An order, usually of a notary public, issued to a party or non-party Duces Tecum to a case, to attend a legal proceeding such as a trial or deposition. If documents also are requested, the subpoena is called a subpoena duces tecum, Latin for “bring with you.” See also Discovery; Pretrial Discovery.
Success Fee Legal fees added to hourly billings if, in the lawyer’s opinion, he or she deserves a bonus based on his performance. Protest any such billing.
Summons The court’s official notice to the defendant that he or she must respond to the attached complaint. The fee is $1 for an official blank summons.
Supreme Judicial Court The highest court in Massachusetts.
Supervision; Supervised See Visitation. Visitation
Surviving Agreement See Agreement and Modification; Complaint for.
Temporary Alimony See Temporary Support.
Temporary Order, A pretrial order compelling a party to do something, or Temporary Restraining prohibiting him from certain activities. Order (TRO)
Temporary Support A temporary order of support issued while a case is pending.
Tenancy by the Entirety The manner in which jointly owned real estate is usually held by married couples. The surviving spouse, if the parties were married at time of death, becomes the sole owner automatically, regardless of any contradictory terms in the decedent’s will.
Testimony Any statement made under oath.
Tort; Marital Tort; A tort is any wrongful act which creates legal liability against the Domestic Tort defendant or “tortfeaser.” However, Massachusetts does not recognize domestic torts.
Trial; Hearing on the A formal proceeding before a judge who hears testimony under Merits; Evidentiary Hearing the rules of evidence and makes a final decision or judgment relating to the matters presented. All such decisions are with
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prejudice, since they are final adjudications of the matters presented.
Trial Memoranda; Pretrial A “sales” document filed with the court, setting forth each party’s Memoranda theory of the case, what they want, and why they should get it.
Trustee Process A court order to a third party, such as a banker, freezing an account or property.
Uncontested Divorce A divorce in which the parties agree on all matters as set forth in their separation agreement.
Vacate the Marital Home, A request to the court made by motion asking that one party, Motion to usually the husband, be forced to vacate the marital home.
Venue; Change of Venue The location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.
Visitation, Grandparent Grandparents have visitation rights in all 50 states.
Visitation; Supervised Pursuant to stipulation, agreement, or court order, visits of Visitation unemancipated children with their non-custodial parent. Visits are supervised by a responsible adult when the non-custodial parent is accused of child abuse or neglect.
Effective July 15, 2015 the Massachusetts Probate and Family Court moved from the term “visitation” replacing it with “parenting time”.
Wage Assignment A court order to a third party, usually an employer, requiring the employee’s wages to be attached (automatically deducted from a paycheck) and assigned (paid) to another party, usually the wife.
Writ of Attachment See Attachment; Motion for Attachment.
Writ Ne Exeat (Arrest) An arrest warrant granted in emergencies.
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