When we meet with a new client who is facing the possibility of a divorce or paternity action, we are asked many of the same questions about the process. In many aspects the divorce or paternity process will be the same, although there will be differences based upon the specific facts of the case and the personalities of parties and their attorneys. Below are ten of the most common questions that we receive from new clients on our initial meeting.
- How much will this cost? This is the most common question and, unfortunately, the most difficult to answer. It largely depends upon the facts of the case, the complexity of the issues, and the attitudes of the parties. If both parties, and counsel, are willing to discuss and consider the other person’s concerns and work toward a resolution, then costs will be minimal. However, if the parties are combative, or if there is a need for experts such as tax/accounting experts, custody evaluations, business evaluations, or if the evidence is extensive, then fees and costs will quickly add up.
- How long will it take? As with fees and costs, this is difficult to predict. An uncontested, or simple, divorce can take as little as 30-60 days before a judge reviews and approves the agreement. Conversely, a highly contested divorce can take as much as 18-24 months, or more, to get to trial, plus additional time for the judge to review the evidence and issue a decision. The time largely depends upon the issues to consider, the need for experts, and the parties’ willingness to compromise.
- Can I get “full custody”? Within the last few years, the term “full custody” has become a misnomer. First, we must consider the types of custody: legal and physical. Legal custody is the decision making capacity on behalf of the child generally regarding medical care, education, religion and activities. Most parties share legal custody and make these decisions together, although legal custody may be given to one party when the other party is unable or unwilling to work amicably. Physical custody, now known as parenting time, is the division of the child’s time between the parties. How the time is divided can range from sharing time equally to one party having 100% of the time depending on many factors relating to the lives of the parties and needs of the child. While it is possible for one party to truly have full custody, it is uncommon as the courts work hard to foster a relationship between children and both parents to the fullest extent possible and in the child’s best interest.
- Can I keep “my money”? This question usually arises in the situation where one party had assets prior to the marriage, or when one party accumulated assets in their own name during the marriage. While all assets owned by the parties are subject to the court’s jurisdiction, meaning the court has the power to divide all assets (including marital and pre-marital), the courts generally do not transfer pre-marital assets to the other spouse absent a good reason such as financial misconduct on the part of the spouse owning the asset. Assets acquired during the marriage, regardless of the name on the assets, are divided between the parties. There are many factors to consider when making this division such as the source of the asset, length of marriage, and the conduct of the parties, among others. There is no set manner in which assets will be divided as it is largely dependent upon the conduct of the parties during the marriage and their respective abilities to support themselves after divorce.
- Will he or she have to move out of the house when I file for divorce? Typically, neither party is required to move out of the house pending the divorce. Once the divorce is completed, the house will be disposed of with one party receiving the house or with it being sold. If there are issues of domestic violence for one of the parties or the children, then the court may issue an order for the offending party to vacate the house. This is a lesser standard than a restraining order, but there must be a showing of potential harm to members of the household to remove a person from their home.
- What documents do I need? In order to file a new action for divorce, a complaint must be accompanied by a marriage certificate for a divorce action and the birth certificate for a paternity action. Thereafter, the parties need to exchange tax returns, pay stubs, bank statements, retirement and investment accounts, and health insurance information. In addition to those, the parties should gather, or at least preserve, any documents that are relevant to the facts of the situation and can help prove the facts of the divorce as that person sees it.
- What steps should I take to prepare myself before filing the divorce? A person contemplating a divorce should gather all of the financial document outlined above, and any other references to bank, investment or retirement accounts, even if it is an incomplete record. We also highly recommend that people change all of their passwords to ensure privacy for email, social media, and telephone message. Additionally, if there are concerns that any items of value may be taken, then it should be preserved in a safe location until a final determination can be made as to its disposition. We also recommend that you consult with your estate planning attorney to make any appropriate changes to current plans and directives.
- How much child support/alimony will I get? Child support and alimony depend largely on the income of the parties and, for alimony, the financial needs of the parties. For most people, there will not be an order for alimony set at the same time as an order for child support, with few exceptions. The child support guidelines are calculated based upon the parties’ gross income and expenses for health insurance, dental insurance, child care, and other child support obligations. Absent certain situations, the court must follow the guidelines and will not deviate as the money is solely for the benefit of the children.
- Can my children come to court or talk to the judge? Children are not allowed in the courtroom, nor can their statements or letters simply be presented to the court. However, a child’s voice can be heard in the court through either a Guardian ad Litem, who will interview the child as part of an investigation, a probation department interview of the child, or through an attorney appointed on behalf of the child. These are often effective ways of providing the court with the child’s perspective, feelings, desires, as well as a third-party view of the disputed issues.
- Can I have a legal separation? In Massachusetts there is no recognized status as “legal separation.” The parties may separate their household, but they remain married until such time as a divorce is entered. For parties who are separated, but do not want to file for divorce, there is an option to file for separate support in order to obtain enforceable court orders for custody and child support.