Contested Divorce - massachusetts
A contested divorce is always a dramatic, emotional, and financially draining experience. Families are split-up. Children are often stuck in the middle. Broken lives and broken dreams. But divorce is a common thing. Approximately 50% of all marriages end in divorce, and while it is an arduous experience, there is a light at the end of the tunnel. A new life begins now. For assistance and to set-up a no obligation free consultation at Rao Law Offices please contact us.
What is a contested divorce?
A contested divorce is a divorce where you and your spouse do not have an agreement upon the filing of the divorce petition. A contested divorce in Massachusetts can be a long, drawn out proceeding, but most contested divorces end up being finalized by the completion of a separation agreement, and not a trial. There are usually three contested factors in a divorce proceeding:
A parent’s top concern is their children. In a divorce proceeding there is no issue of more importance to the judges of the Massachusetts Family and Probate Court than the well-being and financial support of the children of the Commonwealth. There are numerous issues that one should think about in regards to the issues of children and divorce.
First, where will the children reside for the majority of the time? The physical custody of the children is very important, as the party who has physical custody of the child will be considered to be the custodial parent, and will have the most day-to-day impact on the children’s lives. Parties generally have a good idea as to where they want their children to reside. While many people assume that the children will live with the mother, this assumption is not based in law. In fact, there is a trend – as the traditional roles of husband and wife change – to have the children reside with the father upon a divorce. The main concern of the Massachusetts judge will be to have the divorce have as little impact on the children as possible. Therefore, when making a decision as to who should have custody of the children, the parties should consider who has been the primary caretaker during the marriage.
Second, another custody issue one must consider is “Legal Custody.” Legal custody means who makes the major decisions about issues such as education, health, medical care, emotional development and religion. Generally, a Massachusetts Family and Probate Court will order that the parties share the legal custody of the children. Meaning, the parties will need to work and communicate together to determine the major life decisions for the children. However, if the parties cannot work together, or there is a history of alcohol, drug, or domestic abuse, a court will be inclined to order sole legal custody to the non-abusing party.
Third, once the issue of custody has been resolved, the next issue is the parenting schedule for the children. This is a very important part of a Massachusetts Divorce. A parenting schedule is a detailed schedule of the time the children will be spending with each parent. It shall not only be calculated to provide each party with a clear understanding of the coming weeks, but will give a detailed accounting for each important holiday to the family, including the children’s birthdays, the parent’s birthdays, major holidays, school vacations, summer vacations, and any other traditional important date in the family-unit. A more detailed and cohesive parenting schedule will make things much easier for each party, and will be very beneficial to the children moving forward.
Fourth, once the tough issues of custody and parenting schedules have been tackled, the next step would be to calculate the amount of child support the non-custodial parent (the parent that does not have custody of the children) will be providing to the custodial parent for the benefit and support of the minor children. In Massachusetts, child support is calculated by using the “Massachusetts Child Support Guidelines.” The Massachusetts Child Support Guidelines are calculated by using both parties gross income and making deductions for child care costs, health insurance costs, dental/vision costs, and other child support orders being paid by the parties for other children not subject to this child support order. The judges of the Massachusetts and Family and Probate Court are required to follow the child support guidelines in most instances. However, this is a “rebuttable presumption.” In other words, if one party contests the child support guidelines, the contesting party has the opportunity to “rebut” the presumption that the guidelines shall apply. This is an opportunity for a seasoned, experienced attorney to make sound, reasoned arguments as to why your child support order should be more or less than what the guidelines suggest. Child support is generally paid weekly, or bi-weekly, however, under certain circumstances an obligor can make monthly child support payments to the obligee.
Moreover, the parties should understand that child support is something that can and will be addressed in the years to come. Child support does not remain at the same figure throughout your child’s dependence upon the parent’s for support and maintenance. Indeed, child support will most likely change three to five times from the time the child support order is initially entered to when the child support order is terminated due to the emancipation of the child. How could this happen? The short answer is that circumstances change: children get older, parent’s financial circumstances change drastically, and accordingly, a party can come back into court and seek a change in child support. Modification of child support orders occurs frequently, and we can assist parties in modifying Massachusetts child support orders in any of the Massachusetts Family and Probate Courts.
Finally, once custody, parenting time, and child support issues have been contemplated and dealt with accordingly, there is yet one more issue parties need to think about and resolve: the children’s post-secondary education. Even if the children are very young and this might be something to flush-out at a later time, it is never too early to start thinking about the children’s college education. Namely, where will the children go to school, who will pay for their education, and what will the decision process look like years from now? For example, what if the court order’s the father to pay for the entirety of the children’s college education, will father have a say in the decision making process? These types of issues must be addressed by the parties and the court so that subsequent litigation – years later – is not necessary.
After the complicated and emotional issues of the children have been tackled one must begin to think of divorce as nothing more than a division of the assets of both parties. This can be simple, or extremely complicated, depending upon the amount of assets the parties hold, either together or separately. Massachusetts law provides that all assets – including those acquired before a marriage – can be considered part of the marital estate and therefore may be divided by the trial court judge in the judge’s discretion. For all intents and purposes, most trial judges will generally divide property and assets that were acquired during the marriage, and allow each party to continue to keep the property they held before the marriage began.
Alimony is spousal support paid from one ex-spouse to another for a certain time period, or in certain circumstances in perpetuity. The "central objective of alimony is, subject to the availability of resources, maintenance of the more dependent spouse in an economic style close to which the spouse had become accustomed during the marriage.” Whether or not alimony should be paid to one spouse by the other is often the most difficult issue to resolve in a hotly-contested divorce proceeding.
Alimony causes a lot of frustration for all parties involved because there are no guidelines or explicit rules to follow when determining how much Massachusetts Alimony will be paid form one spouse to another. There are no real guidelines for judges to follow in awarding alimony, and as such everyone, including your attorney, will have a difficult time giving a client any certainty on how much, if any, alimony would be awarded under Massachusetts Family Law by a Massachusetts Family and Probate trial judge. There are, however, some general rules to keep in mind when considering Alimony in Massachusetts: Alimony awards are gender neutral. Men and women can be ordered to pay alimony to a former spouse. Alimony awards are based upon the need of one spouse for financial support, and the ability of the other spouse to pay. Alimony is more likely to be an issue in a long-term marriage where the earning capacity of one spouse is significantly lower than the earning capacity of the other. Alimony also comes up in a marriage of any length if one party is unable to work and may be forced onto public assistance in the absence of an alimony award. Alimony awards are less likely in a short-term marriage, or where both parties have relatively equal incomes and earning capacities. If alimony is awarded in the context of a short-term or medium-term marriage, it is more likely to be time-limited.
We can help you resolve any issues in your Massachusetts Contested Divorce. Contact Rao Law Offices for more information.