How to File for Divorce
in Massachusetts with Forms
An uncontested divorce can be based on either no-fault or fault grounds. The fault ground will usually be "cruel and abusive treatment." The advantage to using a fault divorce ground is that the procedure is faster. The disadvantage is that you need to tell the judge about your spouse's "cruel and abusive treatment." The no-fault procedure takes longer, but you may prefer the delay over talking about your problems in court. In this chapter we first discuss the uncontested no-fault divorce, then explain the differences involved in a fault divorce.
Uncontested No-Fault Divorce
For an uncontested no-fault divorce (commonly known as a "One-A" divorce, as it is based on provisions found in section 1A of Chapter 208 of the Massachusetts General Laws), you need the following documents:
Sample completed forms and instructions for completing the forms are provided in Appendix B. Blank forms are provided in Appendix C. Note that many of these are standard forms, which means they can also be obtained form the court at no cost.
Upon completion of the required documents listed above, file the papers in person or by mail at the appropriate county divorce court. See the selection of "filing Your Forms" in Chapter 3 for more information about how and where to file your papers.
After you file all of the papers, including your Request for Trial -- Pre-Trial Assignment, the court will schedule your case for a hearing within four to eight weeks, depending on the county. You and your spouse will receive written notice approximately two weeks in advance of the hearing, telling the time, date, and place of your hearing.
Both you and your spouse should appear for the court hearing. Behave courteously to everyone, including your spouse, and dress in a business-like manner. For more information on courtroom etiquette, see the "Tips for the Courtroom" section in Chapter 6.
In some cases, one spouse is unavailable because of work or illness, and the court may excuse the presence of that party. The more prudent practice is for both parties to appear or to send an attorney for the absent part. The attorney, however, cannot testify or agree to any last minute changes to the Settlement/Separation Agreement that the court may want.
Many people are astonished that occasionally a court comes across an agreement it will not accept. For example, if the husband gives the house to the wife in exchange for her agreement not to pursue him for child support, the court may refuse to accept the agreement because children are entitled to support form both parents and neither parent has the right to bargain away the children's support rights.
The judge usually reviews all of your divorce papers in the courtroom while you and your spouse stand in front of him or her. If the wife has a lawyer, judges usually request the wife's lawyer to "examine" the witness under oath, that is, to pose questions to the wife about the marriage, all of which may be answered by referring to the information in the first four paragraphs of the joint petition. Some judges insist that the party whose name appears first on the petition answer the basic questions.
The oral examination of the wife or husband is conducted by one party's attorney (unless you both appear pro se, in which case the judge will ask all the questions), and is based on the information that appears on your joint petition. The following are examples for the questions to be asked:
If a lawyer is asking these questions, some judges then take over the questioning and ask both parties the following types of questions:
The judge may also ask the attorney to summarize the terms of the agreement. If both parties appear without an attorney, the judge may ask you or your spouse questions about your marriage, and questions such as:
The judge will ask women whether they wish to resume using their maiden or former married name, since divorce judges have the authority to allow resumption of the former name as part of the divorce proceedings. Even if you did not check off the box on your divorce petition requesting the use of your former name, you may file a Motion to Amend Complaint that day and change your name officially. To complete the Motion to Amend Complaint: Fill in the case style according to the instructions in Chapter 3, check the first box after the paragraph beginning "Now comes the plaintiff...," check the first box after the paragraph beginning "Wherefore" and type in the name you want, and complete the date, signature name, address, and telephone information called for at the bottom of the form. You are allowed to use any name without a court order, so long as you do not intend to defraud a creditor, but to avoid problems, obtain copies of the order form the court to give to various agencies such as the social security administration.
At the hearing, the court will enter a written order, approve your settlement agreement, and find that there is an "irretrievable breakdown" of you marriage. The court will send you or your lawyer a copy of the judge's order and findings - but you are not divorced yet.
Waiting for Your Final Divorce Judgment
As previously explained, you must wait 120 days for a final divorce judgment in an uncontested no-fault divorce case (90 days in all other cases). You are not required to return to court or take any further action because the court will enter the final judgment automatically on the 121st day (assuming it is a business day) following your divorce hearing. The court will not send you a copy of the final judgment unless you send a letter requesting a certified copy to the "Copy Department" of the county Probate and Family Court, along with a bank check or money order in the amount of $10 made payable to the Register of the appropriate county Probate and Family Court. Enclose a self-addressed stamped envelope and refer to your case by its official name (e.g. Mary Doe v. John Doe), and docket number. Massachusetts, like most states, does not require a written divorce judgment upon application for a marriage certificate, but most people want copies in their possession for future reference.
If you decided to use the fault ground for divorce, you will need to prepare the following documents:
At the hearing, the court expects testimony from the plaintiff (the spouse who signed and filed the complaint for divorce). In almost every aspect, the testimony follows the format outlined under the no-fault divorce section above with the exception of your reason or ground for the divorce. After the preliminary questions about the parties, children, the date of the marriage, and when and where you last lived together the next question and response are:
Question: Directing your attention to the date you last lived together, please tell the court what happened to cause the break-up of the marriage.Answer: We argued again. My spouse came home at 2:00 a.m. I had no idea where my spouse was. For weeks before the separation my spouse continued staying out late and would return home screaming curses, throwing things at me, and hitting me. I couldn't sleep and lost twenty pounds over a three week period just before we separated. I felt so bad I couldn't go to work or do my errands.
The court or a lawyer for one of the parties then resumes asking questions about the agreement as outlined in the preceding no-fault divorce section.
Uncontested divorces by definition leave nothing for the judge to resolve because you and your spouse have reached an agreement on all of the issues relating to your marriage and divorce. The judge's role is simply to determine the fairness of the agreement and whether you have stated a case for divorce. If the agreement is acceptable and you present sufficient facts to warrant a finding of divorce, the court enters the appropriate orders and judgment dissolving your marriage.
When you cannot agree, you may need judicial help and guidance in dealing with such matters as custody, visitation and finances as outlined in the next chapter on contested divorces, i.e., any divorce action without a signed settlement agreement.