Divorce and Separation

Divorce is about planning for your future as much as it is about separating from your spouse. When you contact my office, I will ask you about your goals in establishing your independent legal and financial identity, in order to advise you as to how different options can help you achieve your desired results.

Your legal representation early in the divorce process can make all the difference in the outcome of your case. Once a divorce action is filed, the court will act quickly to issue orders regarding your family’s financial and parenting responsibilities, and may be unwilling to change those arrangements later. Seeking legal representation before litigation begins will allow me to prepare every possible argument in your favor.

I will help you:

  • Strategize when and how to file for divorce based on your particular situation;
  • Determine whether to negotiate with your spouse prior to court involvement at various stages;
  • Characterize your assets and liabilities for reporting to the court, advising as to when an appraiser, forensic accountant, or other professional may support your position regarding property division or alimony;
  • Achieve your goals in negotiations and at court hearings;
  • Obtain evidence to support your case using interrogatories, depositions, requests for production of documents, and subpoenas to third parties;
  • Avoid unintended results and unnecessary tax burdens in any potential settlement or divorce decree, particularly regarding division of assets and liabilities, alimony, and child support orders; and
  • Decide whether to reach a settlement or proceed to trial.

Questions to Ask Yourself

  • Are you really ready to divorce? Have you tried marital counseling? Is there a chance of reconciliation? You have the option of filing a Complaint for Separate Support or a Separation Agreement if you are not ready to end your marriage.
  • Do you and your spouse communicate civilly? If you are each able to negotiate in good faith, there are opportunities to reach agreements with your spouse rather than resigning yourself to the court’s decisions.
  • Do you anticipate a dispute over child custody? Involving the court in highly personal details of your life will impact the divorce process and potentially your ability to co-parent with your spouse moving forward.
  • Are you afraid of your spouse? It is a sad fact that you are at the highest risk of violence from a partner after you leave. We will discuss safety planning and timing of contacting your spouse regarding the divorce action, and whether you should seek a restraining order pursuant to Mass. Gen. Laws c. 209a, discussed here.

Preparing for Divorce

Gather and make copies of all necessary documents. Before a divorce is underway, you have access to information that your spouse may try to keep from you after you have separated. Financial documents in particular have a tendency to “go missing”. Making copies now will save litigation costs later.

Documents you will need most immediately include:

  • Original or certified copy of your marriage certificate. This needs to be filed with the Complaint for Divorce or Joint Petition for Divorce.
  • Prenuptial and postnuptial agreements. I will analyze the contracts to determine the likelihood of enforceability by the court.
  • Pleadings already filed. If a divorce action is already pending, I will need copies of the documents filed previously.

Establish your own financial identity.

  • Create a budget for your new life. This will allow you to see your financial situation realistically and provide support for your position regarding property division and alimony.
  • Get a copy of your credit report, which will list all bank accounts, credit lines, and loans that have been reported to credit agencies. This will assist in preparing your Rule 401 Financial Statement, allow you to correct mistakes affecting your credit score, and note liabilities that should be your spouse’s responsibility.
  • Establish credit in your own name. It is much easier to open a credit card or bank account in your own name now, prior to any legal or financial upheaval. Please be aware that any funds or expenses could be subject to division by the court.

Starting a Divorce

Filing for Divorce or Separation. We will discuss your procedural options and how to contact your spouse regarding the action. If your spouse has served you with a Complaint for Divorce, we will strategize your answer and any counterclaims you may have.

Motion for Temporary Orders. We will discuss what to propose for the court’s Temporary Orders, which address day-to-day needs during the pendency of your case, such as financial support, a parenting plan, medical insurance, who will reside in the marital home, and rights and responsibilities for marital assets and liabilities.

Automatic Restraint on Finances. Pursuant to Massachusetts Supplemental Probate Court Rule 411, upon filing for divorce or being served with a Complaint for Divorce, you are under court order not to take financial action such as disposing of property, incurring further debts that could burden your spouse, or changing insurance beneficiaries. While you are still able to make reasonable expenditures of daily life, I will advise you to regarding the confines of the order.

Parent Education Program. Within 60 days of the filing of any Complaint for Divorce where there are children of the marriage, you and your spouse will each need to register to attend a court-approved Parent Education Program that focuses on the emotional and developmental effects of divorce on children. It is not expected that you will attend the program with your spouse.

Mandatory Financial Disclosures. Within 45 days of the service of summons of a Complaint for Divorce, Separate Support, or Child Support, Massachusetts Supplemental Probate Court Rule 410 requires each party to provide the other with the following documents:

    • Financial Statement. Pursuant to Massachusetts Supplemental Probate Court Rule 401, you and your spouse will each need to complete the short form financial statement if your income is under $75,000, or the long form financial statement if your income is over $75,000. You will be required to submit an updated financial statement at numerous points during the case, including prior to court hearings on financial matters and by the request of your spouse under certain circumstances.
      The Financial Statement is the most critical document in your divorce. The court will rely on the information contained in your statement to determine alimony, child support, and property division. You must sign the document under pains and penalties of perjury, which means that you may not be able to claim later that you made mistakes.

I will ensure that you do not omit or underreport information that will support your financial claims, and will advise you where a financial professional such as an appraiser or a forensic accountant may support your valuation of a disputed asset.

I will analyze your spouse’s financial statement with a critical eye, request further information through discovery methods, and challenge dubious claims to strengthen your position.

  • Federal and state income tax returns for the past three years and the tax returns for any partnership or business entity in which you or your spouse has an interest, together with supporting documents.
  • Copies of your four most recent pay stubs from each employer.
  • Health insurance documentation, showing the cost and nature of coverage.
  • Bank account statements for the past three years for all 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 children.
  • Statements for the past three 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 children, 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
  • Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three years.
  • Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three years.

Further Discovery. After the mandatory financial disclosures have been made, we will be able to request further information from your spouse through Interrogatories, Requests for Production of Documents, and Depositions. I will strategize this investigation to obtain the most beneficial evidence for your case.

Settlement or Trial. Litigation is intended to resolve as many conflicts between you and your spouse as possible. While trial is sometimes necessary, in the vast majority of divorces the parties reach settlement all disputes prior to judicial determination. Should negotiations break down or you and your spouse disagree fundamentally on major issues, I am prepared to take your case to trial.

Is Alternative Dispute Resolution for You?

Alternative dispute resolution has become very popular, offering potentially less expensive and more harmonious methods to resolve issues in divorce. However, these methods rely on both parties negotiating in good faith and a power balance between them – not usual characteristics in a dissolving marriage.

Litigation may be more effective in protecting your interests, especially if there is a history of abuse in your marriage, your spouse suffers from mental illness or addiction, you and your spouse fundamentally disagree on major issues, or you suspect that your spouse has been lying to you or hiding assets.

Once a divorce decree enters, it will be difficult if not impossible to seek modification at a later time, particularly regarding property division. Your comfort with the process is of paramount importance, and you should not participate in a forum in which you feel pressured or rushed into a settlement.

Types of alternative dispute resolution:

  • Arbitration. A formal proceeding in which the parties agree in advance to be bound by the decisions of a neutral arbitrator.
  • Mediation. An informal, voluntary process in which a trained neutral party assists the parties in reaching agreement on issues without court involvement.
  • Collaborative Divorce. Spouses and their attorneys agree to negotiate all disputes, limiting court involvement to approving the parties’ agreement and issuing a divorce decree. If negotiations break down, both spouses’ attorneys must withdraw from the case and the spouses must seek new counsel for litigation.

If you are facing divorce, you have many options available to you. To discuss which methods will be most effective in reaching your goals, call (978) 704-9223 or email Lance Law LLC to schedule a consultation.

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