Massachusetts Divorce Procedures

Massachusetts Divorce Procedures

Complete overview of Massachusetts divorce laws for people considering a Massachusetts divorce or filing a Massachusetts divorce with issues to be resolved about child custody, child support, visitation and alimony.

Massachusetts Divorce Residency Requirements

In order to file your Complaint for Divorce in Massachusetts, you must make sure the Probate and Family Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Massachusetts residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

One of the spouses must be a resident of the state of Massachusetts if the grounds for divorce occurred in Massachusetts. If the grounds for divorce occurred outside the state of Massachusetts then one spouse must be a resident of the state for at least 1 year.

Actions for divorce shall be filed, heard and determined in the probate court, held for the county where one of the parties lives, except that if either party still resides in the county where the parties last lived together, the action shall be heard and determined in a court for that county. In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.

The divorce is typically filed with in county in which the filing spouse lives.

(Massachusetts General Laws – Chapter 208 – Sections: 4,5 & 6)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Massachusetts. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Massachusetts residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Massachusetts Grounds for Divorce

The Complaint for Divorce or Petition for Divorce are the initial documents filed with the Massachusetts court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

A divorce from the bond of matrimony may be adjudged for the following:

No Fault Based Grounds:
Irretrievable breakdown of the marriage.

Fault Based Grounds:
Adultery, impotency, desertion continued for 1 year next prior to the filing of the complaint, habitual drunkenness, drug addiction, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

(Massachusetts General Laws – Chapter 208 – Sections: 1, 1A, 1B and 2)

Every divorce case that is filed in the state of Massachusetts must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Massachusetts Uncontested Divorce

This information is an overview of the uncontested Massachusetts divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Massachusetts.

To file for divorce in Massachusetts, a spouse must be a resident of the commonwealth if the grounds for the action happened in Massachusetts. If the grounds happened outside of the commonwealth, a person must be a resident for a year. The action is filed in the county where the couple last resided together. If neither spouse resides in that county, then the action may be filed in the county where either spouse now lives.

Grounds for divorce are No-Fault, which means irretrievable breakdown of the marriage and may be filed with or without a separation agreement, and Fault, which means a) impotence; b) imprisonment for more than five years; c) adultery; d) alcoholism and/or drug addiction; e) desertion without support for a year prior to filing for divorce; f) cruel and inhuman treatment; g) nonsupport whereby a spouse is able to provide support but grossly, wantonly, or cruelty refuses or neglects to provide support for the complaining spouse.

In divorce actions, the filing spouse is called the Plaintiff, when the action is fault based, and the Petitioner in no-fault actions; the spouse responding is called the Defendant in fault actions and the Respondent in no-fault actions. In fault actions, a divorce is called a Complaint for Divorce; in no-fault filings, a Petition for Divorce.

Actions are filed in the Probate Court for the Commonwealth of Massachusetts.

Massachusetts permits a simplified divorce (called a “1A,” so named for the section of the law). When both spouses can cooperate, a couple files a joint petition. This is an uncontested, no-fault divorce. In this routine, the spouses submit the following documents:

a) A certified copy of the marriage certificate;

b) A Joint Petition, which identifies the parties, their children (if any), requests restoration of wife’s former name (if desired) and asks the court to incorporate a separation agreement;

c) A Joint Affidavit, which states that the couple “…no longer [derive] satisfaction from … married life and now believe there is no chance of reconciliation.”

d) A Financial Statement for each spouse, which is on pink paper if the spouse makes less than $75,000 per year and on purple paper if he or she makes more than $75,000 per year;

e) An Affidavit Disclosing Care or Custody Proceedings, if there are children under 18, which describes the terms and conditions of custody and visitation;

f) Attendance Certificate, which certifies that the parents attended parenting classes, if there are minor children;

g) Child Support Guidelines Worksheet, which is used when there are unemancipated children under 23;

h) A Settlement Agreement, which is signed by both spouses and details the terms and conditions of the property settlement;

i) An Income Assignment Worksheet, which is used to assign incomes, if required;

j) Request for Trial–Pre-Trial Assignment, which is used to schedule a divorce hearing;

k) Certificate of Absolute Divorce or Annulment, which records the action for the commonwealth.

The spouses in an uncontested, no-fault action may ask for a hearing at the time they file. Depending on the county, the hearing is set up in days or weeks, but from the hearing to the final divorce, five to six months elapse, about a month longer fault or contested action. Contested no-fault actions may take even longer — a six-month waiting period after filing the Complaint and four to nine months wait for a hearing, plus 90 days after a trial. Contested Fault divorces can take seven months or more from the filing to the final action.

Filing for an uncontested, fault divorce requires all the forms used in an uncontested, no-fault divorce, plus the following:

a) A Complaint for Divorce, which identifies the parties, their children and stipulates the requested relief;

b) A Divorce/Separate Support Summons, which is returned with the Defendant’s acceptance of service or sheriff’s return of service;

c) An Answer and Counterclaim, which may or may not be filed by the Defendant if he or she wishes.

If a spouse cannot or will not be located or accept the Summons, or if he or she lives outside of Massachusetts, the Plaintiff must file a Motion for Alternative Service. After the court orders it, the Divorce/Separate Support Summons and a legal notice may be published in a newspaper designated by the court. The Summons and a legal notice are published once a week for three weeks. After this, a copy of the Divorce/Separate Support Summons is mailed to the last known address by certified mail, return receipt requested. If the mail is accepted, the green card is filed with the court. If it is not, the court is so informed.

Contested actions, fault and no-fault, begin in a similar way, but can become much more difficult. Each party must provide the other with detailed financial information within 45 days of the receipt of the Summons. The Defendant normally files an Answer and Counterclaim as a preliminary to contesting the action. Sometimes, the Plaintiff will request temporary orders in connection with spousal and child support. If the contested action cannot be resolved, the parties prepare for trial. This preparation entails discovery, which includes interrogatories, requests for production of documents, depositions.

In Massachusetts, unlike some states, the court prepares Notices of Hearings, Court’s Findings, Judgement or Divorce Nisi (which is a preliminary to the final judgment), and the Final Judgment of Divorce.

Massachusetts Simplified Divorce Procedures

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; and 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].

Each state has its own unique filing procedure. When filing for divorce in Massachusetts, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Massachusetts Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Massachusetts Laws and the filing requirements.

Massachusetts Property Division Factors

In Massachusetts, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Family Court within the Judgment of Divorce.

Massachusetts is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Family Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.

The courts shall consider the following: a) length of the marriage; b) the conduct of the parties during the marriage; c) the age; d) health; e) station; f) occupation; g) amount and sources of income; h) vocational skills; i) employability; j) estate; k) liabilities and needs of each of the parties; l) the opportunity of each for future acquisition of capital assets and income.

(Massachusetts General Laws – Chapter 208 – Sections: 1A and 34)

Since Massachusetts is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Massachusetts Spousal Support/Maintenance/Alimony Factors

In Massachusetts the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Family Court will order support from one spouse to the other on a case-by-case basis as follows:

The court shall consider the followin in determing a support award: a) the length of the marriage; b) the conduct of the parties during the marriage; c) the age; d) health; e) occupation; f) amount and sources of income; g) vocational skills and employability; h) estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.

The contribution of each of the parties in the acquisition of the marital assets and the role in the marital relationship may also be considered by the court. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.

(Massachusetts General Laws – Chapter 208 – Sections: 1A and 34)

Massachusetts Child Custody Factors

In Massachusetts, the court will examine whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.

A child custody agreement shall contain the following, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined. (Massachusetts General Laws – Chapter 208 – Sections: 28 and 31)

In Massachusetts, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Massachusetts Child Support Factors

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:

a) the parent to pay support has other minor children and there are insufficient financial resources available;
b) the parent to pay support has extraordinary expenses [travel-related visitation expenses, uninsured medical expenses, etc.]; and
c) 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].

Massachusetts child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Massachusetts child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Massachusetts child support deviation factors that may be applicable to the situation.

Massachusetts Grandparent’s Rights
 
Grandparent Rights to Visitation: Visitation may be granted if the child’s parents are divorced, married but living apart under a temporary order or judgment of separate support, one of the parents is deceased, or if the child was born out of wedlock and paternity established by a court or by acknowledgment by the father and the child’s parents live apart, if the visitation is in the child’s best interest. Chapter 119, Section 39D (A.L.M. Chapter 119 §39D). Must include “care and custody affidavit” with petition.

When Adoption Occurs: Rights terminate upon adoption by anyone other than a stepparent.

Child Custody Statutes: No specific factors in statute; only general concepts. A.L.M., Chapter 208 §31

Parents May Choose: Yes

Massachusetts Military Divorce Laws

A Massachusetts military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Massachusetts Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Massachusetts court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Massachusetts court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Massachusetts
b) You or your spouse must be stationed in Massachusetts

Grounds for Massachusetts Military Divorce

The grounds for a military divorce in Massachusetts are the same as a civilian divorce.

Dividing the Property

Along with the normal Massachusetts property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Massachusetts, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Massachusetts child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Massachusetts Child Support Guidelines

The Massachusetts child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Massachusetts child support order.

Massachusetts Child Support Guidelines

Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: NO
Secondary Education Support: YES
UIFSA: YES

* Percent of Income Model: Massachusetts utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Massachusetts Child Support Definitions

CHILD SUPPORT GUIDELINES

THESE GUIDELINES APPLY TO CURRENT CHILD SUPPORT ONLY. THEY DO NOT APPLY TO ALIMONY, THE DIVISION OF MARITAL PROPERTY, THE PAYMENT OF ARREARS, RESTITUTION, OR REIMBURSEMENT, NOR DO THEY APPLY WHERE THE PARTIES HAVE MADE AN AGREEMENT WHICH IS APPROVED BY THE COURT AND IS FOUND BY THE COURT TO BE FAIR AND REASONABLE, AND MAKES ADEQUATE PROVISION FOR THE SUPPORT OF THE CHILD.

THERE SHALL BE A PRESUMPTION THAT THESE GUIDELINES APPLY, ABSENT AGREEMENT OF THE PARTIES, IN ALL CASES SEEKING THE ESTABLISHMENT OR MODIFICATION OF A CHILD SUPPORT ORDER. A SPECIFIC, WRITTEN FINDING THAT THE GUIDELINES WOULD BE UNJUST OR INAPPROPRIATE AND THAT THE BEST INTERESTS OF THE CHILD HAVE BEEN CONSIDERED IN A PARTICULAR CASE SHALL BE SUFFICIENT TO REBUT THE PRESUMPTION IN THAT CASE.

The child support guidelines are formulated to be used by the justices of the Trial Court, whether the parents of the children are married or unmarried, in setting temporary, permanent or final orders for current child support, in
deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders. A modification may be allowed upon showing of a discrepancy of 20% or more between an established order and a proposed new order calculated under these guidelines. The presumption establishing a proposed new order may be rebutted in cases where the amount of support required under the guidelines is due to the fact that the amount of the current support order resulted from a rebuttal of the guideline amount or by an allowance of an agreement of the parties and there has not been a change in the circumstances which resulted in a rebuttal of the guideline amount. The guidelines are intended to be of assistance to members of the bar and to litigants in determining what level of payment would be expected of them given the relative income levels of the
parties.

In establishing these guidelines, due consideration has been given to the following principles:

1. To minimize the economic impact on the child of family breakup;
2. To encourage joint parental responsibility for child support in proportion to, or as a percentage of income;
3. To provide the standards of living the child would have enjoyed had the family been intact;
4. To meet the child’s survival needs in the first instance, but to the extent either parent enjoys a higher standard of living to entitle the child to enjoy that higherstandard;
5. To protect a subsistence level of income of parents at the low end of the income range whether or not they are on public assistance;
6. To take into account the non-monetary contributions of both the custodial and non- custodial parents;
7. To minimize problems of proof for the parties and of administration for the courts;
8. To allow for orders and wage assignments that can be adjusted as income increases or decreases.

I. INCOME DEFINITION

A. For purposes of these guidelines, income is defined as gross income from whatever source. Those sources include but are
not limited to the following:

1. salaries and wages (including overtime and tips) and income from self- employment (except in certain instances, see B. below)
2. commissions
3. severance pay
4. royalties
5. bonuses
6. interest and dividends
7. income derived from business/partnerships
8. social security
9. veteran’s benefits
10. insurance benefits (including those received for disability and personal injury)
11. worker’s compensation
12. unemployment compensation
13. pensions
14. annuities
15. income from trusts
16. capital gains in real and personal property transactions to the extent that they represent a regular source of income
17. spousal support received from a person not a party to the order
18. contractual agreements
19. perquisites or in kind compensation to the extent that they represent a regular source of income
20. unearned income of children (in the court’s discretion)
21. income from life insurance or endowment contracts
22. income from interest in an estate (direct or through a trust)
23. lottery or gambling winnings received either in a lump sum or in the form of an annuity
24. prizes or awards
25. net rental income
26. funds received from earned income credit

B. In individual cases, the court may choose to disregard overtime income or income derived from a second job. However, consideration of such income may be appropriate in certain instances such as those where such income constituted a regular source of income when the family was intact.

II. FACTORS TO BE CONSIDERED IN SETTING

THE CHILD SUPPORT ORDER

A. RELATIONSHIP TO ALIMONY OR SEPARATE MAINTENANCE PAYMENTS
So long as the standard of living of the children is not diminished, these guidelines do not preclude the court from deciding that any order be denominated in whole or in part as alimony or a separate maintenance payment. It is the responsibility of counsel representing the parties to present the tax consequences of proposed orders to the court.

B. CLAIMS OF PERSONAL EXEMPTIONS FOR CHILD DEPENDENTS

In setting a support order, the court may make an order regarding the claims of personal exemptions for child dependents between the parties to the extent permitted by law.

C. MINIMUM AND MAXIMUM LEVELS

The guidelines recognize the principle that, in many instances, to maintain a domicile and a reasonable standard of living for the minor children, the custodial parent will choose to work. In those cases, a disregard of gross income of the custodial parent is to be applied up to a maximum of $15,000.
The formula in these guidelines is intended to be adjusted where the income of the custodial parent exceeds the $15,000 disregard after consideration of day care expenses.

These guidelines are also intended to ensure a minimum subsistence elevel for those non-custodial parents whose income is less than $125 per week. However, it is the obligation of all parents to contribute to the support of their children. To that end, in all cases, a minimum order of $50.00 ($11.55 per week) per month should enter. This minimum order corresponds to the $50.00 disregard of support payments that is passed through to families receiving Aid to Families With Dependent Children mandated by Federal law. This minimum should not be construed as limiting the court’s ability to set a higher order, should circumstances permit.

Where the court makes a determination that either or both of the parties is either purposely unemployed or underemployed, the section of this guideline entitled ATTRIBUTION OF INCOME should be consulted.

These guidelines are not meant to apply where the combined gross income of the parties exceeds $100,000 or where the gross income of the non-custodial parent exceeds $75,000. In cases where income exceeds these limits, the court should consider the award of support at the $75,000/$100,000 level as a minimum presumptive level of support to be awarded. Additional amounts of child support may be awarded at the judge’s discretion.

D. CUSTODY AND VISITATION

1) Custody
These guidelines are based upon traditional custody and visitation arrangements. Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable. The guidelines are also not meant to apply for cases in which there is split physical custody, i.e., each parent has physical custody of one or more children.

2) Visitation
These guidelines recognize that children must be allowed to enjoy the society and companionship of both parents to the greatest extent possible. The court may adjust the amount of child support beyond the 2 percent range (see Basic Order, Section III A.) after taking into consideration the parties’ actual time sharing with the children and the relative resources, expenses, and living standards of the two households. In some instances, the non-custodial parent may incur extraordinary travel- related expenses in order to exercise court ordered visitation rights. To foster parental involvement with the children, the court may wish to consider such extraordinary expenses in determining the support order.

E. CHILD CARE AS DEFINED BY INTERNAL REVENUE CODE SECTION 21

The basic child support obligation set out in the guidelines includes the non-custodial parent’s share of day care expenses. Child care expenses are not seen as a separate support item and responsibility for them resides with the custodial parent.

The reasonable cost of day care actually paid is to be subtracted from the custodial parent’s gross income before the disregard formula is applied.

F. AGE OF THE CHILDREN

To reflect the costs of raising children, age has been broken down into four groups: 0-6, 7-12, 13-18, and over 18. A single adjustment to the basic order should be made based on the age of the oldest child for whom support is to be ordered. The support order where the oldest child is six or under should be the basic support order according to the schedule. Where the oldest child is 7-12, the order should be increased by 10 percent of the basic order amount. Where the oldest child is between the ages of 13 and 18, the order should be increased by 15 percent of the basic order amount. For cases involving children over the age of 18, to the extent permitted by the General Laws, the amount of the order, if any, will be left to the court’s
discretion.

Where the parties file an agreement with the court that allows for private payment between the parties, it is suggested that the incremental age issue be addressed in the agreement.

G. HEALTH INSURANCE, UNINSURED, AND EXTRAORDINARY MEDICAL EXPENSES

1) Health Insurance

When the court makes an order for child support, the court shall determine whether the obligor under the order has health insurance on a group plan available to him/her through an employer or organization or has health insurance or other health coverage available to him/her at reasonable cost that may be extended to cover the child for whom support is ordered.
When the court makes a determination that the obligor has such coverage, the court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of such child, unless the obligee has already provided such coverage for the child at a lesser cost (except for health insurance funded under public assistance programs), or has and prefers to continue such coverage irrespective of cost.

If family health coverage is to be provided by the obligor, the support order should be reduced by one half the cost of family coverage. It is the responsibility of the obligor under the support order who is seeking such a reduction in the order to produce proof satisfactory to the court of the existence of such family coverage under the plan, or no such reduction shall be allowed. However, there shall be no reduction if the obligor has a preexisting family health insurance policy which could be amended to name the additional dependents to the policy at no cost to the obligor. Should health insurance not be provided for any period for which it is ordered, the credit for the premium payment shall be revoked and the order shall be increased by the amount of the credit during the period of noncompliance.

2) Routine Uninsured Medical and Dental Expenses

The custodial parent shall be responsible for the payment of the first $100 per child per year for routine medical and dental expenses. For amounts above that limit, the court shall allocate costs on a case by case basis. No reduction in the child support order should be allowed.

3) Uninsured Extraordinary Medical and Dental Expenses

The payment of uninsured extraordinary medical and dental expenses incurred by the minor children, absent agreement of the parties, shall be treated on a case by case basis. (Example: orthodontia, psychological/psychiatric counseling, etc.) In such cases, where the court makes a determination that such medical and dental services are necessary and are in the best interests of the child, consideration toward a reduction in the child support order should be given.

H. ATTRIBUTION OF INCOME

If the court makes a determination that either or both parties is earning substantially less than he or she could through reasonable effort, the court may consider potential earning capacity rather than actual earnings. In making this determination, the court shall take into consideration the education, training, and past employment history of the party. These
standards are intended to be applied where a finding has been made that the party is capable of working and is unemployed, working part-time or is working a job, trade, or profession other than that for which he/she has been trained.

This determination is not intended to apply to a custodial parent with children who are under the age of six living in the home.

I. PRIOR ORDERS FOR SUPPORT

To the extent that prior orders for spousal and child support are actually being paid, the court should deduct those payments from the gross income before applying the formula to determine the child support order. This section applies only to orders for child support for children other than the one who is the subject of the pending action.

J. EXPENSES OF SUBSEQUENT FAMILIES

In instances where the non-custodial parent has remarried and has children by a subsequent marriage, the court should examine such circumstances closely to determine in the allocation of available resources whether consideration beyond Part II Section I (Prior Orders of Support) should be given when the custodial parent of children borne of the first marriage, or subsequent marriages appears before the court seeking a modification of the existing child support order. Expenses of a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such expenses should not be considered a reason to decrease existing prior orders. In actions pursuant to G.L. c.209C, this paragraph shall be construed to apply equally to children born out of wedlock.

Massachusetts Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Massachusetts Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner or Co-Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent or Co-Petitioner

The spouse who does not initiate the Divorce with the court.

Court Name:
Commonwealth of MA, The Trial Court, The Probate and Family Court Department, _____________ Division

The proper name of the court in which a Divorce is filed in the state of Massachusetts. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce or Joint Petition for Divorce

The title and name of the legal document that will initiate the Massachusetts Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Certificate of Absolute Divorce

The title and name of the legal document that will finalize the Massachusetts Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
Office of the Clerk of the Probate Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation are: a) a spouse fails without cause to provide support; b) desertion; or c) 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].

Property Distribution:
Equitable Distribution

The applicable Massachusetts law that will dictate how property and debt is to be divided upon Divorce.

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