Frequently Asked Questions About Massachusetts Divorce and Family Law

  • Can I change my name before I get divorced?

    Many people obtain a court order before they change their name. They can do this at the time of their final divorce hearing or in a separate petition for a name change. However, in Massachusetts, people also have the right to change their name without a court order. Just as many women change their names when they get married without a court order, people can change their name at any other time without a court order. People, male or female, have the right to choose their own name as long as there is no intent to defraud anyone by the name change. A person can change their name simply by using anther name. The person must publicly and consistently start using the new name.

  • How to serve a missing spouse in a divorce?

    You can get divorced even if your spouse has disappeared and can’t be notified. However, unless you actually serve your spouse you can’t get an award of alimony or child support.

    If you know where your your spouse lives or works you need to hire a constable or sheriff to serve your spouse. If you don’t know where they live or work you should use the internet to locate them. You will need to file a motion for alternative service in which you detail the efforts you have made to locate and serve them. If you can locate a close relative like their parents you can ask the court to serve the relative as a way of notifying the spouse.

    If you are paying alimony or child support through a state agency or the court you can file a motion to serve the collection agency who will then serve the spouse. This also works if your spouse’s address is impounded by the court.

    If there is a restraining order and you are not permitted to contact your spouse you should either hire an attorney who will be able to serve the spouse or you can file a motion for the court to serve the spouse.

    If all else fails, you will need to serve the spouse by publication in a newspaper. This will require a motion to the court. It is the least preferred method of service.

  • Can I take A new job that pays less and reduce my child support payment?

    Massachusetts distinguishes between voluntary job changes and involuntary changes. A voluntary change is where a person chooses to change jobs or start a new business. An involuntary change occurs when a person loses their job through no fault of their own.

    If you voluntarily change jobs to a lower-paying position and then petition the court for a lower child support payment, you probably won’t get a reduction. Massachusetts does not allow people to manipulate child support payments. Voluntarily choosing to take a lower paying job is viewed as a manipulation and is prohibited.

  • How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?

    If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident.

  • If a marriage license is not filed with the State, is the marriage legal?

    The marriage is valid. Under G.L. c. 207, § 42 if you entered the marriage in good faith thinking that it was valid and the officiant represented that he had the authority to marry you, then the marriage is valid. Your subsequent separation does not effect the validity of the marriage.

  • What are the terms used to identify the parties in a divorce proceeding?

    The person who files a contested divorce is known as the Plaintiff. The other party to the divorce is called the Defendant. If a joint complaint is filed for a no fault divorce, both parties are referred to as Co-Petitioners.

  • What are “fault divorce” and “no-fault divorce”?

    In a no-fault divorce, the parties have to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In other words, if one person wants a divorce, the couple will be divorced. In a fault divorce, the Plaintiff must prove that the Defendant has committed a wrong that allows the Plaintiff to get a divorce. People think that a fault grounds divorce gives the Plaintiff an advantage in getting property division or alimony. This is not the case as the Court must consider the same factors to decide these issues in both fault and no-fault divorces.

  • How much child support should I get?

    Massachusetts has enacted child support guidelines that are presumed to be the correct amount of child support due. These guidelines are available at the State website. A worksheet to calculate the amount can be found at http://www.mass.gov/courts/docs/forms/probate-and-family/cjd304-worksheet-child-support-guidelines.pdf. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.

  • What is “venue,” and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?

    “Venue” refers to the proper local court to file a divorce case. In Massachusetts, divorces are filed in the Probate and Family Court. The proper venue for a divorce action is the county of the parties’ last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.

  • Can I get Alimony?

    Alimony is determined by G.L c. 208, §§ 34 and 48-55 which lists the factors a judge must consider in awarding alimony and when alimony can be given. General alimony may be awarded if there is a need and there is no child support being paid. If child support is being paid, the parties must have a combined income in excess of $250,000.00 before alimony can be granted. General alimony is granted for a period of time determined by the length of the marriage. In addition to general alimony there are three other types of alimony: rehabilitative alimony, reimbursement alimony and transitional alimony.

    If the parties agree, alimony may also be appropriate as a way to reduce taxes when child support is awarded. Since alimony is deducted from income for taxes to the payer and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.