('s conflicted copy 2013 12-16 (1))


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  2. 2. ABOUT LAURIE FOWLES •Member MA & CT Bar •Experienced in civil litigation & family law •Former Judicial Research Clerk •Currently owns law practice specializing in civil litigation, family law and disability law
  3. 3. DIVORCES IN MASSACHUSETTS There are two types of divorces in Massachusetts: •“Joint Petitions for Divorce” and •“Contested Divorces”
  4. 4. JOINT PETITION FOR DIVORCE •Both parties file one “petition” asking that the Probate Court grant them a divorce •This is also referred to as an “uncontested” divorce.
  5. 5. Is a Joint Petition Appropriate for you? •Appropriate for Short-term marriages with few assets; •Appropriate when Parties have agreed on division of assets; •Appropriate when Parties have agreed on child support/custody; (if appropriate), or •When Parties have already mediated divorce with a certified divorce mediator and have come to a written agreement.
  6. 6. Forms you need to file your Joint Petition for Divorce 1-Filled out Petition (This is the actual request for divorce) 2-Filing Fee of $215.00 or Waiver 3-Separation Agreement 4-Financial Statements 4-Child Support Guideline worksheets ; (with children) 5-Affidavit Disclosing Care or Custody Proceedings (with children) 6-Parenting class certification or Waiver (with children) 7-Affidavit of Irretrievable Breakdown 8-R408 & Certified Copy of Certificate of Marriage; 9-Court Appearance by both parties.
  7. 7. PETITION & FILING FEE •Petition can be found in your Litmos Materials •Petition is filed in County where one or both parties reside currently •Filing Fee – Currently $215.00. Subject to change. Some courts do not take personal checks. •Waiver of fee only allowed in special circumstances such as on public assistance or a party is incarcerated. See Resources at end of presentation
  8. 8. COMPLETING PETITION FOR DIVORCE Names & Addresses of Parties Section 1: Where you last lived together & when Section 2: Minor Children of Marriage. Write None if does not apply Section 3: If you were divorced from same person or filed with same person before, please include info. If not, write N/A or None Section 4: Write date last lived together on this line Section 5: Check first 3 boxes. If someone wants to take maiden name, please check box of that person and write name you want to resume Date & Sign both Parties
  9. 9. SEPARATION AGREEMENT NO CHILDREN •Draft your own agreement •Sample separation agreement in your Litmos Materials •Agreement divides property, debt, retirement, etc.
  10. 10. ASSET DIVISION IN SEPARATION AGREEMENT Real Estate: Keep what you brought in, divide marital property equally with buyout or sale Personal Property: Keep what you brought in, agree on rest within reason Retirements/Pensions: Generally split accumulation during marriage equally either with a Qualified Domestic Relations Order (QDRO) or direct transfer by holding company
  11. 11. ASSET DIVISION IN SEPARATION AGREEMENTS Stocks/Bonds: Equal split of what accumulated during marriage via direct transfer Bank Accounts: Close & split all joint accounts, keep what you brought in Debt: Split what you accumulated jointly, keep what you brought in or what is in individual names
  12. 12. ASSET DIVISION IN SEPARATION AGREEMENTS •Alimony: Generally waived for short term marriages, can be allowed. (See sample agreement in Litmos Materials.) •Health Insurance: Come to agreement, generally spouses agree to stay on cheapest or best plan but can purchase individually or agree to have own if both have it •Life Insurance: Short term, generally do not keep, otherwise come to agreement if assets or children involved. (See sample agreement in Litmos Materials.)
  13. 13. SEPARATION AGREEMENT WITH CHILDREN •This can also be drafted on your own. •Sample can be found in your Litmos materials under “Separation Agreement with children .pdf” •Property/Asset Division same as without children •Additional items to include in agreement for children •Parenting Classes required (see Forms For Parents section)
  14. 14. ISSUES RELATED TO CHILDREN IN DIVORCES Child Custody: Legal & Physical Custody. Must specify in agreement. Parenting Schedule: Who has children & when. Include vacations, birthdays, holidays. See sample. •Child Support: Generally follow Child Support Guideline worksheet linked below. Can either have DOR take from paycheck or make direct deposit/check each week/bi week, etc. Support in MA goes through college if full time student.
  15. 15. ISSUES RELATED TO CHILDREN IN DIVORCES Health Insurance: Same as if spouse. Generally whoever has cheapest available coverage •Life Insurance: Generally spouse must have enough to cover child support through age of dependency •Tax Dependency: Many alternate who claims children but there may be circumstances where one or the other claims every year.
  16. 16. SEPARATION AGREEMENTS •See sample for additional language •Parties certify that they have disclosed all assets & debts to court •Opt to incorporate into divorce decree •Notarized
  17. 17. FINANCIAL STATEMENTS •Short Form: Income under $75,000 /cjd301shortform.pdf •Long Form: Income over $75,000 /cjd301longform.pdf •Schedule A: Self Employment Income /cjd301schedulea.pdf •Schedule B: Rental Income /cjd301scheduleb.pdf
  18. 18. FINANCIAL STATEMENTS •Each party must fill one out at time of divorce •Short Form or Long Form: Depends on income •Schedule A if Self Employed •Schedule B if Rental Income
  19. 19. AFFIDAVIT OF IRRETRIEVABLE BREAKDOWN •Must file one with Petition •Form Affidavit •Make sure you use same date as Petition •Doesn't need to be overly graphic or detailed
  20. 20. FORMS FOR PARENTS •Affidavit re: Care & Custody Proceedings must be filed in most counties Forms/adcc.pdf •Parenting classes required unless waiver •List of classes •Waiver – Only allowed in special circumstances (incarceration, military service, illness etc.)
  21. 21. VITAL STATISTICS •Massachusetts Office of Vital Statistics Form. Some counties require this form so they can send to MA Office of Vital Statistics. This form is in your litmos materials. The clerk’s office at the Court House will inform you of whether you need to fill out this form. Forms/TrialCourtForms7-2007/r408.pdf •You must also file a Certified Copy of Certificate of Marriage with Petition. Contact town where marriage took place for certified copy
  22. 22. COURT FILING & APPEARANCE •Both parties should appear in person at same time with Joint Petition & Documents at County Probate & Family Court
  23. 23. COURT APPEARANCE •Both parties will need to appear in front of court & be heard by Judge –Some counties/courts are same day as filing –Some will schedule you for another day
  24. 24. COURT APPEARANCE •Judge will have both parties come up & be sworn in to tell truth •Judge will review papers & ask if you have both reviewed them •Judge will ask if you are agreeing of own free will and if you understand agreement •Judge will ask you if you wish to be legally divorced •Judge should then approve divorce
  25. 25. AFTER COURT •Divorce Nisi: 90 days from court approval date for final divorce decree. Divorce not final (remarriage) until decree date. Parties receive copy in mail. •Asset divisions usually final unless fraud occurred (one party failed to disclose something to the other) •Child support and custody can be modified at any time •Alimony may also be modified in certain circumstances.
  26. 26. RESOURCES •Affidavit of Indigency & Supplements for waiver of filing fees. Usually if on assistance or incarcerated •Most Probate & Family Courts have “Lawyer of the Day” if you have questions or need help with forms •Massachusetts Law Libraries resource list for Divorce law • Mediation of divorces
  27. 27. End Presentation