A divorce is often a messy, complicated and stressful business. Decisions have to be made about assets, child custody, child and spousal support. Ideally, these decisions are made rationally and sensibly and an agreement made which suits both parting spouses and made in the best interests of any children. Unfortunately, often the reasons why the relationship has come to the point where one or both spouses are seeking a divorce may preclude rational and sensible decisions being made. There may be any amount of disagreement about how property and other assets are divided as well as who is granted child custody and visitation rights.
Options for divorce in Massachusetts
Assuming a divorce is looming there are three options for divorce in Massachusetts. Most divorces these days tend to be no-fault divorces. In a no-fault divorce, the reason for divorce is because of an irreconcilable breakdown in the relationship.
A no-fault 1A divorce is where both spouses agree on the terms of the divorce, i.e. how to divide common assets, what to do about child custody if relevant, child and spousal support (alimony). These sorts of divorces are typically easy to arrange. There are certain criteria for this type of divorce, e.g. a minimum 1 year residency in the state and/or reason for the breakup having taken place in the state.
A no-fault 1B divorce is more problematic as although the reason for one or the other spouses filing for it is the same as for a 1A divorce, i.e. an irreconcilable breakdown in the marriage, there is no mutual agreement about the divorce itself, or how to deal with assets, child custody and child and spousal support. Typically, one spouse files a petition for divorce with a complaint made to the court requesting “relief” in terms of how the petitioner wants to divide property, decide on child custody arrangements etc. This is basically a lawsuit with the plaintiff the spouse who files the petition and the defendant the other spouse. The defendant is given a limited period of time to ‘answer’ the points made in the petition for divorce made by the plaintiff and also has the right to file a counterclaim. The counterclaim is a claim made to the court outlining what the defendant is requesting as relief in contrast to the claim made by the plaintiff.
The third type of divorce in Massachusetts is a fault divorce. This type of divorce can be requested if one or other of the two spouses believes that there are specific reasons why the divorce should be granted, e.g.
- a prison sentence of 5 or more years;
- adultery;
- cruel and abusive treatment;
- desertion;
- gross and confirmed habits of intoxication;
- impotency;
- non-support.
Although the paperwork is a bit different than for a no-fault 1B divorce, and will probably talke longer and cost more, the procedure is essentially the same, i.e. a petition is filed with a complaint listing the reasons why the divorce is sought based on the behavior or actions of the other spouse. As with a 1B divorce, the defending spouse is entitled to file an ‘answer’ and a counterclaim to the complaint.
Reasons for filing a divorce counterclaim in Massachusetts
When you have been served with a summons issued by your spouse (typically it is the plaintiff who has been given the summons by the court and must find a way of presenting you with it in person) you have 20 days to respond. You don’t actually have to do anything if you don’t want to (e.g. if you agree with what your spouse has requested as “relief” from the court). But if you don’t respond with an answer and a counterclaim within the 20 days from receiving the summons it is most likely whatever your spouse requested will be accepted by the court.
Note that there is a difference between your “answer” and a “counterclaim”. Both of these two responses can be completed on official forms available to download on the Massachusetts Government website or you can write your own responses as long as you include details as specified by the court.
The “answer” is basically a response to your spouse’s complaint and in it you may agree or disagree with any of the points raised. For example, you may agree that the marriage should be ended because of an irreconcilable breakdown in the relationship (1B) or because you have been habitually intoxicated/ committed adultery etc. You may disagree with certain requests made, e.g. child custody but disagree with property division.
If you do want to contest the divorce, then it is wise to submit a counterclaim as soon as possible, certainly within the 20 day period allowed. It is also sensible advice to contact a divorce lawyer before you do this. The more thinking you put into how to compose your counterclaim and what to include in it, the more likely your side of the dispute will be taken into consideration by the court. In a counterclaim you outline how you want assets, child custody, alimony and child support to be arranged. This may have some things in common with your spouse’s claim or may be totally different.
What happens next?
Depending on how far apart the claim and counterclaim are, the court may order a pre-trial hearing. This follows discovery in which proof of assets and other material information is shared between both parties. The hearing may result in an agreement or compromise made between the parties, which could lead to the divorce being granted without having to go to trial.
If the pre-trial hearing or negotiations between the two parties can’t come to an agreement, then a trial will be scheduled. The judge at the trial will make the decision about how separation details are made based on an appraisal of both claim and counterclaim, evidence brought before the court such as financial statements and witnesses if called. A “nisi” period of 90 days then follows, leading to the official dissolution of the marriage.
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