Divorce: The First 3 Months

The Chronology of a Divorce

Before a divorce is filed, you must determine where the matter will be heard. If you live with your spouse in Massachusetts, , once you bring the court a certified copy of your marriage certificate, you may seek a divorce here. Moreover, if you have resided in Massachusetts for at least one year, even if you have not previously resided with your spouse here as a married couple, you may seek a divorce here.

In Massachusetts, the procedural flow of a divorce works as follows:

The first steps of the divorce process start by serving your spouse a summons and Complaint for Divorce. The summons is generally a document announcing that a divorce action is being commenced. In Massachusetts, that document also indicates that, from that point forward, neither party may dispose of marital assets other than for the necessities of life.

The complaint has two parts. The first part relates to a statement of facts which sets forth the basic facts – a procedural history of the marriage, identification of the parties, whether they have children, etc. The second part seeks relief – such as an award of alimony, child support and a division of the marital estate.

Within 20 days of being served the complaint, you are required to file with the Court an answer (the responsive pleading) where you respond separately to each allegation made in the complaint. You must then serve a copy of your answer to the attorney representing your spouse. If you also wish to seek a divorce, you are required to file a separate counterclaim setting forth the relevant factual information as well as the legal basis for your counterclaim when you file your answer. Commonly, both the answer and counterclaim are included in the same document.

Even if you file your answers late, the court will likely accept them as court’s prefer to determine cases on their merits rather than by default.

Your first court appearance will likely be when temporary orders are made. Both parties bring their completed financial statements to the court and will, most likely, meet with a Family Services officer. As trained mediators, these court officers will to listen to the issues relating to each party’s situation, hear their motions and attempt to help the parties determine how to both establish and maintain the status quo. Such motions and temporary orders commonly relate to child custody and visitation, financial issues and protection from harassment or domestic violence.

The temporary order stage should not affect the final outcome of the divorce, but from a practical perspective, temporary hearings can be very important since courts often favor a policy of maintaining the status quo.

Temporary orders may be changed if there is a substantial change in circumstances during the course of the divorce that would make the change in the temporary order necessary.

Following the temporary motion session, parents will typically begin the required parenting class, comply with mandatory Rule 410 financial disclosure, and begin formal discovery.

Both the mandatory discovery and formal discovery stages refer to the investigation phase of the divorce process. This is primarily to identify contested issues between the parties, make a determination of the marital finances, and begin the free exchange information. The most common discovery tools available to an attorney are interrogatories, document requests, requests for admissions and depositions.

As part of the discovery stage, experts are often employed to determine certain facts. These experts may be jointly agreed upon by the parties, or one side may hire an expert to contest an issue and require their testimony at trial. The most common experts are private investigators or guardian ad litems, business evaluators, real estate appraisers and psychologists.

In an attempt to settle, a divorce case may be resolved at any time the parties come to an agreement on the issues. In that case, the parties would sign a marital settlement agreement which would lay out the terms of their agreement.

If the parties have failed to resolve their issues, the court will require a pretrial conference. Here, in a gentle form of arm-twisting, the Judge will meet with the parties to discuss the issues and make settlement recommendations.

If attempts to settle were unsuccessful, the divorce will go to trial. You will tell your story – through testimony and exhibits – to the court. Each party presents their case and is subject to cross-examination from the opponent.

Once the judge makes a ruling on the equitable division of the marital estate and child-related issues, the parties may later make a motion to the court to compel compliance with its orders, or to modify such orders if there is a substantial and material change of circumstances.

Critical Decision: Play Fair or Be Tough?

When you end a marriage, the decision of whether to fight to the end in court may be the most important decision you make.

Fairly early in the divorce, you will be encouraged to find a lawyer to represent you. Although it is a good idea to have an orientation session with a lawyer to learn more about Massachusetts law, the most crucial reason for this meeting is to learn about how the system really works.

For example, what gets depicted in movies and television soap operas is that divorcing people have to have a trial before the judge. It may happen that way on television, but in real life 95 percent of all divorces are settled by negotiation before the trial. This type of proceeding doesn’t make for very compelling television, however.

Whether you choose to litigate or attempt some other form of alternative dispute resolution, you’ll still have to organize your financial information and get a grasp on the issues involved. Then, your decision of which strategy to use may well depend on whether opposing counsel advises your spouse to escalate the war.

Interestingly enough, either choice will still likely require you to have legal representation. Your lawyer must be able to fight for your fair share, and to hold the other party accountable.

Your attorney should be able to predict the outcome on the three major issues in divorce – custody, support, and property/debt division – fairly easily. An attorney who has been in court litigating domestic relations cases should have a pretty good idea of what you are entitled to. This makes the formula for settlement ascertainable. You should refuse to settle only when the offer from the other side, if accepted, will deprive you of so much that it is worth the attorney’s fees necessary to get a better deal. For example, if your spouse refuses to give you your half of a piece of a piece of property, thus depriving you of $5,000, which would probably otherwise be awarded by the judge, it is not worth going to trial unless your attorney’s fees will be less than $5,000. In short, you should take a business approach to your divorce.

If an attempt to settle doesn’t work – and you choose to fight all the way – you should remember that the family law community is relatively small, even in a state the size of Massachusetts. Your lawyer will likely have tried cases against the opposing attorney over the years, attended the same professional events, and may have even asked opposing counsel for advice at some point in their career. If your attorney and your spouse’s attorney are cordial to one another, don’t be concerned they’re forming a conspiracy against you! They’re likely trying to create an atmosphere conducive to settlement. A skilled attorney will know when pleasantries ends and tough negotiation begins.

All the players – you, your spouse and both attorneys – need to avoid hostility, diffuse tension, and maximize the ability to arrive at a mutually acceptable settlement. The alternative is not good. If you can’t settle out of court, you face the unknown associated with a trial, somewhere in the range of 50 additional billable hours from your attorney, and a huge emotional cost. Divorce battles take a lot out of people. Plus, if children are involved, a fight will usually adversely affect them.

Breaking the News to Others

Informing family and friends of your decision to get divorced will seem much easier than telling your children, because their lives will not be affected as strongly as your kids’ lives will be. The news may not be totally unexpected by adults you have confided in or who were aware of your stressful marriage. When possible:

Inform everyone who should know about your separation in person, by phone or by e-mail or letter. However reluctant you feel about it, explanations will not be easier later. Avoid the embarrassment and confusion (for yourself and others) that are sure to result if they hear the news from someone else.

Avoid discussing all the unpleasant details of your divorce with family members and friends who wish to remain neutral; that way they don’t feel so compelled to take sides. You need to talk about your anger and frustration, but some of the people close to you may not be appropriate outlets.

Be aware that some people will want to stay close with both of you. You may find yourself angry or hurt with some for not “siding” with you – despite the fact that you may have said, “I understand if you’d like to be friends with both of us…”

Be prepared for the extra sadness of losing some friends. Some married friends have trouble being friends with a single person. You can threaten their own marriage!

The hardest people – other than the children – to break the news to are your parents. It is never easy to tell those who raised you and watched you take your wedding vows that you are now getting a divorce. You don’t want them to hear it from anyone else, so you really must tell them.

If you have had open communication with your parents all along, you will simply be keeping them informed of all the events as they evolve. On the other hand, if there is emotional or physical geographic distance between all of you, it will be harder to decide how much you want or need to share about your divorce. They might not be able to give you the hand of support that you are expecting. Never forget: you are taking one of the toughest steps of your life and you need all the support and love you can get. If your parents cannot understand or give you the support and sympathy you need, you may need to go elsewhere.

Be it family, friends or casual acquaintances, you can expect a variety of reactions from near and far. Soon after the news is out, you will hear from people who think it is their duty to sympathize, want to try to dig up the “real” dirt or have a romantic eye on you or your spouse.

Attorney Irwin M.Pollack reports, “One of the best lessons I learned in my divorce was some of the people I least expected to hear from became staunch allies. You’ll soon learn that your true friends are the ones who express concern for the welfare of you and your children, offer sociability and entertainment, offer empathy because they have been there and know what it’s like, and have specific services to offer as friends.”

Dealing With That First Week

Although some spouses and families find it comparatively easy to cope with the days and weeks following the imminent split, others find the reality that sinks in that first week can be surprisingly hard to handle. Preparation doesn’t stop everybody from feeling stunned. There is often an overwhelming feeling of deep sadness unlike others you’ve experienced. Meals and evenings seem lonely and depressing. People phone, wanting to know what happened, or to give support. It’s generally a long, sad and confusing week. Sometimes you don’t hear people who speak to you. You feel spacey, or tears suddenly appear in your eyes. You stare at book pages without reading words. The “whys” keep floating around in your mind. And the big question: “When will this pain go away?”

If you have become unglued, give yourself credit. You are dealing with the pain now. You won’t have to do it again later. Many adults repress their pain only to find that it resurfaces down the road. Sooner or later, the anger and sadness must be released.

In The Divorce Book for Parents, author Vicki Lansky reports that nothing is as significant as the now out-of-the-house spouse’s handing over the key to the house or apartment. It’s as hard for one spouse to ask for the key as it is for the other to hand it over, or at least let you know it will not be used again. Some spouses don’t feel comfortable asking for the key, feeling “it’s their house, too.” But it’s important to address the “key” issue as soon as possible after separation. Holding on to the key is holding onto what now must become one’s past. Handing over – or asking for – the key is an important step toward the acceptance of the present state of your divorce.

At the very least, there should be others present, besides you and possibly your children. In the alternative, you’ll only hear remarks about new possessions and changes you’ve made to the home, or even roaming eyes that may be casing the place.

Beyond obtaining exclusive possession and control of the marital home, here are some other security measures you should take that first week following separation:

Change the locks if you aren’t certain you have all the keys to the property. If your spouse has a key to get in, they’ll most likely pay you a visit when you are not home and take a number of possessions and documents. Don’t think they’d do that? Yeah, right…
Retrieve any hidden keys that you stuck under doormats or under rocks in the bushes in case of emergency.
Instruct the children that nothing leaves the house to go to the other parent’s home without your permission. Sometimes children are asked to retrieve objects that estranged spouses feel entitled to.

Set your answering device to record all incoming calls. This as well as caller ID can deter telephone harassment. Moreover, change any passwords or – better yet – invest in a new system. You don’t want an estranged spouse listening to any messages or information conveyed confidentially to you!

Going to War: Preparing for a Custody Battle

Unfortunately, custody battles are often part of bitter divorces. If you and your spouse can’t reach an agreement about custody, you need to prepare yourself in the event that your custody case or parenting plan goes to trial.

Today, it can no longer be assumed that the mother will get custody of the children. Instead, in Massachusetts judges consider the “best interests of the child” during a custody trial. They try to fashion the parenting plan based on how the parents will provide the best environment and upbringing for the children.

To get the share of parenting that you seek, you will need to prove to the judge that what you seek is in the best physical, emotional, mental and educational interest of the minor children. In preparing your case, your parenting skills and daily interactions with the children will be thoroughly inspected by a judge. Just telling the court that you are a good parent won’t be enough. You and your lawyer will need to prepare a case – a case based on testimony, exhibits and other evidence that backs up your claim of being capable as a parent.

Be prepared to show the judge how you have gone out of the way to nurture and care for your children. Give tangible proof that the children look to you for their care. Proof is best made by specific examples. For instance, you are the one who takes the children to the doctor, arranges their birthday parties, attends teacher conferences, drives them and their friends to the movies, etc. Let the judge hear other people who should know tell about the high quality of your care and concern for the children. Remember: The judge must see things as you do.

Most important of all is to plan your divorce and keep records. Write down the names of potential witnesses. Record the time you did things with the kids. At the Massachusetts Family Law Group's Worcester office, we’ve always said, “The one who does the best job with the homework – and record-keeping gets the A!” Child Care Checklist

There are many items to think about and consider as you prepare for the custody dispute. Here’s a short list to get you started:

Hire the right lawyer, with the right experience, knowledge and training for a custody battle.

Make a list of the other person’s strengths and weaknesses.

Take the emotion out of both parents’ strengths and weaknesses, the list them from the viewpoint of the judge: job, economics, help from parents, etc.

Write out a draft Parenting Plan. List everything that you want as if you will get everything you want – you won’t, but this is a good start.

Make a list of your bargaining chips.

Find out what criteria the family court in your county looks at when awarding custody or creating a parenting plan.

Find out if your spouse will be making false allegations in court. What would they be? How will you refute these?

Write down any education plans you have for yourself and the children.

Consider how it might help the other person if you did not get angry.

Prior to going to court, it is likely you will be deposed at a deposition. Pay particular attention to the following as they are often key topics:

Know by heart the names of all daycare providers and teachers (past and present)
Know your children’s grades – class-by-class
Know from memory all health care providers your children have seen, the reasons for such visits and any treatment that followed. Know of any medications.
If you and your spouse are proposing different school systems, know comparative data: class sizes, SAT scores, awards, rankings, etc. Be sure to visit both schools.
Expect the question: “Why do you believe you should have (the arrangement you seek)?”
Go into the deposition with a plan for the future. Be prepared to discuss the logistics: your work schedule, the time you leave in the morning, breakfast, pickup, bus stop, etc.

For more proven strategies on winning the custody fight, contact us or go to TheBestInterestoftheChild.com