Massachusetts Divorce Laws

Massachusetts Divorce Laws

Residency Requirements for Divorce in Massachusetts
If the grounds for divorce occurred in Massachusetts, 1 spouse must be a resident. If the grounds occurred outside of the state, the spouse filing must have been a resident for 1 year. The divorce should be filed for in the county in which the spouses last lived together. If neither spouse currently lives in that county, then the divorce may be filed for in a county where either spouse currently resides.

[Massachusetts General Laws Annotated; Chapter 208, Sections 4, 5, and 6].

Legal Grounds for Divorce in Massachusetts

1. No Fault Divorce: Irretrievable breakdown of the marriage (may be filed for either with or without a separation agreement. For no-fault divorce filed in conjunction with a separation agreement, see below under Simplified Or Special Divorce Procedures.)
   [Massachusetts General Laws Annotated; Chapter 208, Sections 1, 1A, and 1B].
2. General Divorce:
   1. Impotence
   2. imprisonment for over 5 years
   3. adultery
   4. alcoholism and/or drug addiction
   5. desertion without support of spouse for 1 year before the filing for divorce
   6. cruel and inhuman treatment
   7. nonsupport whereby a spouse is able to provide support but grossly, wantonly, or cruelly refuses or neglects to provide suitable maintenance for the complaining spouse

   [Massachusetts General Laws Annotated; Chapter 208, Sections 1, 1A, 1B, and 2].

Legal Separation in Massachusetts
The grounds for legal separation are:

1. A spouse fails without cause to provide support
2. Desertion
3. Gives the other spouse justifiable cause to live apart

The court may award support to the spouse and children living apart. If the grounds for legal separation occurred in Massachusetts, 1 spouse must be a resident. If the grounds occurred outside of the state, the spouse filing must have been a resident for 1 year.

[Massachusetts General Laws Annotated; Chapter 208, Section 20].

Simplified/Special Divorce Procedures in Massachusetts
An action for divorce on the grounds of irretrievable breakdown of the marriage may be instituted by filing:

1. A petition signed by both spouses
2. A sworn affidavit that an irretrievable breakdown of the marriage exists
3. A notarized separation agreement signed by both spouses

A marital settlement agreement is an acceptable substitute for a separation agreement. No summons will be required. Such petitions are to be given a speedy hearing. Marital fault is not to be considered in any decision of the court on property division or maintenance. In addition, there are sample divorce forms for use in divorces set out in the Massachusetts Rules of Court Appendix of Forms. A Financial Statement must be filed in all divorce cases. There is an official Child Support Guidelines Worksheet contained in the Appendix of Forms. Finally, in every action for divorce, a Public Health Statistical Report must be filed by each spouse. Copies of this form are available from the offices of the Registers of Probate.

[Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 6B and Massachusetts Rules of Court; Appendix of Forms].

Divorce Mediation or Counseling Requirements
In cases where “irreconcilable differences” are used as the grounds for divorce, the court may refer the spouses and children for marriage and family counseling.

[Massachusetts General Laws Annotated; Chapter 208, Sections 1A and Massachusetts Rules of Court].

Divorce Property Distribution
Massachusetts is an “equitable distribution” state. The court may divide all of the spouse’s property, including any gifts and inheritances, based on the following factors:

1. The contribution of each spouse to the acquisition, preservation, or appreciation in value of the property, including the contribution of each spouse as homemaker
2. The length of the marriage
3. The age and health of the spouses
4. The occupation of the spouses
5. The amount and sources of income of the spouses
6. The vocational skills of the spouses
7. The employability of the spouses
8. The liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
9. The conduct of the parties during the marriage (if the grounds for divorce are fault-based)
10. Any health insurance coverage

Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement.

[Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 34].

Alimony and Spousal Support
Either spouse may be ordered to pay maintenance to the other. The factors to be considered are:

1. The contribution of each spouse to the acquisition, preservation, or appreciation in value of any property, including the contribution of each spouse as homemaker
2. The length of the marriage
3. The age and health of the spouses
4. The occupation of the spouses
5. The amount and sources of income of the spouses
6. The vocational skills of the spouses
7. The employability of the spouses
8. The liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
9. The conduct of the parties during the marriage (if the grounds for divorce are fault-based)
10. Any health insurance coverage
11. The present and future needs of any children of the marriage

Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement. Health insurance coverage may be ordered to be provided as part of the maintenance award.

[Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 34].

Spouse’s Name After Divorce
The wife may be restored to the use of her former or maiden name.
[Massachusetts General Laws Annotated; Chapter 208, Section 23].

Child Custody After Divorce
Custody may be awarded to either or both parents or to a third party. If there is no marital misconduct, the rights of each parent to custody shall be deemed to be equal. The happiness and welfare of the child shall be the factors that the court considers. In making this consideration, the court shall consider:

1. Whether or not the child’s present or past living conditions adversely affect his physical, mental, moral, or emotional health
2. Whether any family member abuses alcohol or other drugs
3. Whether either parent has deserted the child
4. Whether either parent has committed any acts of domestic violence
5. Whether the parents have a history of being able and willing to cooperate in matters concerning the child

Joint custody may be awarded if both parents agree and unless the court finds that joint custody is not in the best interests of the child. If the issue of custody is contested and the parents desire some form of shared custody, a shared parenting plan must be submitted to the court. Provisions in a Marital Settlement Agreement relating to child custody will fulfill this requirement.

[Massachusetts General Laws Annotated; Chapter 208, Sections 28 and 31].

Child Support After Divorce
The court may order either parent to provide maintenance, support (including health insurance), and education for any minor child. There are official Child Support Guidelines. These guidelines are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances in a case. Reasons for deviation from the Guidelines are:

1. The parent to pay support has other minor children and there are insufficient financial resources available
2. The parent to pay support has extraordinary expenses (travel-related visitation expenses, uninsured medical expenses, etc.)
3. Other unusual circumstances

There is an official Child Support Guidelines Worksheet contained in the Appendix of Forms.

[Massachusetts General Laws Annotated; Chapter 208, Section 28 and Massachusetts Rules of Court; Appendix of Forms].

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