Boston Herald

Surviving the end of your marriage:
What you need to know about divorce in Massachusetts

by Mark A. Perigard/bostonherald.com
Monday, March 8, 1999
The Boston Herald

Jane can tell you when her divorce proceedings started. She just has no idea when they'll ever end.

Jane, a 37-year-old administrative assistant married for 15 years from West Roxbury, doesn't want her real name used for fear of retaliation from her spouse. She filed for divorce in the Commonwealth approximately eight months ago.

It was not an easy decision to make, she emphasized, especially given that the couple shares two young children. But after years of growing apart from her husband, she decided she had no choice and filed for a no-fault divorce. "It was definitely a last resort," she said.

Then the requests for additional documentation started coming in. Motions started flying. In the last eight months, she's been dragged into court more than a dozen times and sees no end in sight.

"It ranks right up there with one of the all-time record-breakers," she said, laughing with just a touch of bitterness in her voice.

"It started with issues around the children, visitation and custody," she said. "He used to care about those things, and now those things have seemed to have gone away. Now the issue is coming down to money. That's apparently how it works in a lot of these cases: It starts with the kids and ends with money.

"Support is not an issue," she added. "it's the assets: He wants all of them."

At stake are things like real estate (in this case, the family home), pensions, savings, stocks -- issues common to almost every divorce proceeding.

Jane is not seeking alimony; the state determines child support by a strict, pre-set formula that gives little discretion to judges.

Jane says her husband's intent is to force her to give up all claims on the assets in exchange for custody of the children.

It's a plan that's hardly likely to work, but it has nonetheless turned out to be quite an ordeal. "It's costing me thousands of dollars every time we go into court," she noted. "Everything is a battle."

Her attorney can't give her any idea when the divorce might be settled. Jane now believes that the judge will be forced to order all the assets be sold and the proceeds divided.

"I'm told people who have no money have an easy out," she ruminated. "If you have a lot of money, you need attorneys. Middle-income people like me just end up giving up all of what they have to their attorneys.

"I've never been one to say that the government should be involved in people's lives, but if ever the government should be involved in anything in people's lives, this is it," she said.

  • Learning the hard way
  • Child support
  • Alimony
  • Recent trends
  • The final bill
  • Mediation: An alternative for some
  • Resources

    Learning the hard way

    To the average person, the procedure for getting a divorce in Massachusetts can seem like a crawl through a subway tunnel with a blindfold tied on. The time you need to know about it is probably the worst time in your life to learn about it.

    "Other than losing a child, divorce is the most horrible thing in the world," said Boston-based attorney Diane Neumann. "It's a rejection from someone who loved you and who you counted on."

    Some 21,721 petitions for divorce were filed from July 1, 1997, to June 30, 1998, the most recent reporting period, according to John E. McNichols, court administrator for the Massachusetts Probate and Family Court. During that same period, the court granted 17,930 divorces.

    There are three types of divorce in Massachusetts: fault; no fault with an agreement; and no fault without an agreement.

    In a fault divorce, one spouse blames the other for the break-up of the marriage and files a complaint against the other. The state considers seven grounds for fault divorce. They are:

    1. Adultery.

    2. Impotency.

    3. Desertion for one year or more.

    4. Gross and confirmed habits of intoxication.

    5. Gross and wanton refusal to provide suitable support.

    6. Sentence or confinement for life for five or more years in a federal or state prison.

    7. Cruel and abusive treatment.

    The majority of fault cases today allege cruel and abusive treatment, which can consist solely of mental abuse, attorneys say.

    In a fault divorce, the judge will resolve all unsettled matters at the time of the final hearing. At that time or shortly thereafter, the judge will enter a decree of Divorce Nisi. The parties are divorced, but the divorce is not final until 90 days after the decree has been granted. After that period of time, the two parties are free to legally marry someone else.

    In a no-fault divorce with an agreement, also known as a 1A divorce, both spouses agree the marriage has suffered an "irretrievable breakdown." No more reason need be given to the courts than that.

    The spouses must draft a formal agreement that covers such matters as child custody, visitation, support, medical and/or dental insurance, property division and liability for outstanding debts, among other items. Instead of a complaint for divorce, the couple files a joint petition.

    Usually within 45 days of the filing, the court schedules a hearing to review the case. At the time of the hearing, the judge reviews the petition and the agreement for fairness to make sure all issues are properly settled (such as the custody/support arrangements for any minor children).

    If the judge is satisfied, he or she will enter a finding of an Irretrievable Breakdown of the Marriage and an order that both parties comply with the terms of that joint agreement.

    Thirty days later, the court will enter a Decree of Divorce Nisi and 90 days later the divorce will be final.

    In a no-fault divorce without an agreement, also known as a 1B divorce, one spouse wants a divorce and the other doesn't. The spouse seeking a divorce files a complaint but either doesn't have the grounds for or does not wish to proceed for a fault divorce.

    A final hearing will not be held until six months after the complaint was filed. After the final hearing and the Decree of Divorce Nisi has been entered, the couple must still wait another 90 days before they can remarry. If the divorce is contested, however, the proceedings can drag on.

    (Some material for this section provided by attorney Robert P. Murray.)

    Child support

    Massachusetts has some of the strictest guidelines for child support in the country, local attorneys say, and that's a plus. It means that everyone knows where they stand when they go into the courtroom and has a good idea what the support payments will be. There's very little discretion left to the judges and hence very little need for any arguments or posturing on behalf of the attorneys for their clients.

    The Commonwealth sets child support for the non-custodial parent using a formula that weighs a number of factors.

    First, the non-custodial parent's gross weekly income is considered, along with the number of children. The percentage of support initially set will range between 13 and 35 percent of the weekly income.

    Then an age differential is applied to reflect the costs of raising an older child. Children ages 7-12 warrant an increase of 10 percent over the basic order; children 13-18, a 15 percent increase.

    Then the income of the custodial parent is considered. Income above $15,000 a year, along with day-care expenses, are weighed in making a deduction to the basic order of support.

    Finally, the cost of half of the family health insurance will added or subtracted (depending on which parent is carrying the relevant insurance) in setting the final figure.

    The absolute minimum order for child support is $50 a month, reflecting the court's intentions that even the poorest in the Commonwealth must take some responsibility for supporting their children, attorneys say.

    As of Dec. 1, 1998, all couples seeking a divorce in the state must first complete a parenting-education program before a judge will agree to consider their case. The program, offered at several sites throughout the state, teaches parents how to best help their children deal with the pain of a divorce. Parents separately attend the program and must supply a certificate of attendance before the courts will consider a trial request.

    Alimony

    In contrast to child support, there are no firm guidelines for alimony. It is up to the discretion of the judge. However, alimony may only be a factor in a minuscule number of divorce cases in Massachusetts, lawyers said.

    "Many women think that somehow the courts will pay them back for a bad marriage, that somehow their long suffering will be rewarded," said Arlington attorney Diana Merewether. "They look at people like Donald Trump, who has millions, and his wife (Ivana), who got millions, and they don't understand that it's their own pie that has to be divided. If there are no apples in that pie, they're not going to get the pie."

    Alimony is typically not a consideration in short-term marriages or marriages where the top-earning spouse makes less than $100,000 and has child-support obligations (which typically take precedence).

    Recent trends

    One of the biggest changes in recent years is the increased emphasis on the couple's overall debt picture, noted Lynn attorney Mario C. Capano. No longer content to divide assets, judges are now scrutinizing debts, determining who will pay for which bill.

    And it's not just the bills that the couple amassed together -- if one spouse is holding a credit card for personal use, the charges accrued over the course of the marriage are fair game, even if the other spouse knew nothing about the spending. Judges consider such expenses to have contributed to the lifestyle of the couple, even if one knew nothing about them.

    The same principle applies to pensions. "Some men don't understand it," Merewether said. "They think they contributed to it, they went to work every day, so it should be theirs alone. But they don't understand that to be able to go to work every day someone had to take care of those children. It's like a business partnership that allowed him to go to work so he could get that pension for his family. In order for him to keep his pension, there must be some other asset to balance it."

    The final bill

    So how much is your divorce going to cost?

    That depends. That depends on what type of divorce you want, what kind of property (and debts) you and your partner have amassed and how quickly the two of you can come to terms.

    While some lawyers advertise divorce packages (say, $750 for a divorce), other attorneys bostonherald.com spoke to derided such firms as "divorce mills." Firms that offer package deals may be counting on profit through quantity and may not be able to devote much time to your case, warned Leominster attorney Robert P. Murray.

    Final divorce costs can start at approximately $750, with no upper limit, depending on the nature of the case and the willingness of the parties to settle. Get your fee arrangement, whatever it might be, in writing at the start of your proceedings, Murray encouraged.

    The old axiom about getting what you paid for seems especially true here. While it's always good to save money, this is probably not the place to economize. A divorce that seems like a bargain just may not be much of a deal in the long run.

    Mediation: An alternative for some

    "Do you want to send your attorney's kids to college or do you want to send your own kids to college?" asked Boston-based attorney, counselor and certified divorce mediator Diane Neumann.

    Mediation can be an inexpensive, less stressful way to survive a divorce, she says. In mediation, both parties sit down with one person employed by both who hammers out a divorce agreement equitable to both. Instead of attorneys talking to attorneys, the two parties talk out the issues with the mediator present.

    Mediation won't work for every couple, Neumann said, particularly those in abuse situations. But it can work for most -- and it has some key advantages.

    "What the adversarial system can't offer people is closure," she said. "One of the things about closure is telling each other how things have been for them. In mediation, that's more likely. I can give them something attorneys can never give them: the other person."

    Neumann tries to help couples realize that instead of shafting one another, they can work together and both come out winners. A former IRS employee, Neumann might encourage a couple to file a joint return if it meant a bigger tax refund they could split.

    What's the number-one issue that drives a couple to mediation? Children, Neumann said. "They know if they can't find a way to lessen the bitterness and hatred, the kids are going to suffer."

    Neumann charges $280 per hour. For the average couple with minor children owning one piece of real estate (and assuming neither person makes a primary income from self-employment), she estimates she can get a couple to an agreement within 10 90-minute sessions -- or for about $4,200. That's a cost far lower than many divorces today, she pointed out.

    The process "truly helps people feel in control and less afraid and they'll get to keep more of their money and have a better sense of their choices. They'll be able to express those feelings, and they'll have a more civilized relationship. They may not end up as best friends, but they're not going to end up sitting in court. Court is really destructive to people in what it does. It finds out the worst thing about everybody and that's what you bring in. That's the last thing you need when a family is falling apart," Neumann said.

    Resources:

    If you are considering a divorce and wish more information, consider checking out the following:

    www.divorcesource.com For a comprehensive listing of resources, materials and referrals to qualified attorneys in your area.

    The Massachusetts Bar Association
    20 West St.
    Boston, MA 02111
    Phone: (617) 542-3602
    Fax: (617) 426-4344

    Divorce Resource & Mediation Center
    161 Walnut St.
    Newton, Massachusetts 02460
    Contact: Jerry Weinstein
    Phone: (617) 965-2315

    Mario C. Capano, Attorney
    Capano & DeJoie
    101 North Common St.
    Lynn, Mass. 01902
    Phone: (781) 599-6056
    Fax: (781) 593-6925
    E-mail:capdej@mindspring.com

    Diana Merewether, Attorney
    171 Park Ave.
    Arlington, Mass. 02476
    Phone: (781) 643-9553

    Robert P. Murray, Attorney
    14 Manning Avenue - Suite 202
    Leominster, Mass. 01453
    Phone: (978) 537-3343
    Fax: (978) 537-3681
    E-Mail: rpmurray@MurrayEsq.com

    Diane Neumann, Divorce Mediation Services
    Framingham Office:
    650 Worcester Road
    Framingham, Mass. 01702-5248
    Phone # (508) 879-9095
    Fax # (508) 979-9099
    E-mail: Divorcemed@aol.com
    Newton Office:
    1081 Centre St.
    Newton, Mass. 02159
    Phone # (617) 964-7485
    Fax # (617) 617-964-6029