Family Law Frequently Asked Questions
1. How do I commence a Divorce action in Massachusetts?
First, there are two types of Divorce actions, commonly referred to as contested and uncontested. Uncontested is relatively straightforward and inexpensive. The parties decide how they wish to have their property divided, who should pay for health insurance, custody and visitation if children are involved.
The attorneys will negotiate and draft a separation agreement, and submit this and other documents to the court. An uncontested hearing will be scheduled. If, the Probate and Family Judge finds the agreement fair and equitable, a Divorce Nisi will be granted. In 91 days the Court will issue the final Judgment.
A contested Divorce is an expensive and lengthy legal action. Ultimately, the matter may be litigated at trial, and a Judge decides the contested issues. However, usually, the two sides come to an agreement some time before trial, and the Divorce is granted in a similar procedure as an uncontested action.
2. I have children but we were never married, and I want to establish Child Support?
Generally, a Compliant to Establish Paternity must be filed and properly served on the other party. Ultimately, a Probate and Family Judge may have to decide the paternity issue at trial.
However, usually the father signs a Voluntary Acknowledgement of Paternity and/or the parties agree to undergo a simple Genetic Marker Test. Once Paternity is established, the attorneys will determine the child support obligations and request a hearing and submit proposed Order to the Court.
3. How are Child Support Payments determined?
If the non-custodial parent's gross income does not exceed $100,000.00 a year, and the gross income of both parties does not exceed $135,000.00 the amount is established by guidelines. The parties income, the age of the children, and other factors are put into a mathematical format and a payment amount is determined.
If the parties income exceeds this amount, the guidelines are not applicable. However, most attorneys usually agree to set the obligation pursuant to the guidelines for the sake of simplicity, and to save litigation expense.
4. Is there any advantages in filing Bankruptcy before or after a Divorce?
Yes. In many Divorces the attorneys for both sides spend a great deal of time dividing the marital debt between the parties. Quite often, this involves time intensive court hearings.
If the couple, or even one spouse in some circumstances, files for Bankruptcy protection, many debt obligation (including certain property liens) can often be discharged. Therefore, in some situations, it is cost effective to file a Bankruptcy before, or during in some situations, the Divorce proceedings.
It is very common that a person will retain me to prepare and represent them in their personal Bankruptcy proceedings. Often it is to discharge debt that was attributed to them from a Divorce. This is unfortunate because this often occurs after the parties have spent thousands of dollars in legal costs to divide the debt.
5. How much will this cost?
The total legal costs will vary depending on how much litigation is involved. If it is a highly contentious Divorce, which involves numerous court appearances, discovery, and an ultimate trial, it will be time intensive and costly. In realty, an attorney cannot give you a precise figure until he or she has reviewed what issues are involved.
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