Reid & Gaudett Law Group, LLP  The Law Office of Andrea R. Reid

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Office:  1.413.737.1200

  
The Law Office of Andrea R. Reid
 
Family Law

Attorney Reid knows that going through a divorce is an emotionally draining and overwhelming experience.  It is a time where major decisions need to be made.  Attorney Reid is an experienced, skilled, and caring attorney who will educate you and guide you through the process. Attorney Reid puts her clients' interest first!

To request a consultation, please call our office at: 413.737.1200


DIVORCE ACTIONS
There are two types of no fault divorce actions in the Commonwealth of Massachusetts.  They are as follows:

1. Uncontested Divorce (1A Divorce)
An uncontested divorce applies to couples when they are in full and complete agreement as to all terms of the divorce.  Both parties agree that the marriage has experienced an irretrievable breakdown with no chance of reconciliation. When filing an uncontested divorce, the parties will be given a hearing date very quickly to appear before the Court.  An uncontested divorce becomes final 120 days after the hearing date.  Even though the parties are in agreement, the court still retains its discretion as to whether there has been an irretrievable breakdown, whether the agreement is fair and reasonable, and whether the divorce will be allowed.

2. Contested Divorce (1B Divorce)
A contested divorce applies when the parties agree to terminate their marriage, but is in disagreement with the other spouse over assets, and or children or one party is not in agreement to a divorce.  Since this is also a no fault divorce action, the party who files the divorce action asserts that the marriage has experienced an irretrievable breakdown.  A divorce hearing will not be granted no earlier than six months from the date of filing.  However, the divorce becomes final 90 days after the hearing date. 

In addition to the two types of no fault divorces, there are seven fault grounds under which divorces may be granted.  They are as follows:

   Adultery

   Cruelty & Abuse

   Desertion

   Gross and Confirmed Habits of Intoxication (Drugs or Alcohol)

   Impotency

   Non-Support

   Prison Confinement

When a divorce is filed under one of these fault grounds, a hearing date can be requested in as little as 20 days after the defendant has been served the complaint for divorce. This type of divorce will also become final 90 days after the hearing date.  However, testimony and/or evidence will be required for the court to find that the grounds exist to grant the divorce on these fault grounds.


ALIMONY OR SPOUSAL SUPPORT

Under Massachusetts General Law Chapter 208 Section 34 (below), at the time of divorce, the court may make a judgment for either of the parties to pay alimony to the other or the court may assign to either party all or any part of the estate of the other. In determining the amount of alimony or in fixing the nature and value of the property, judges will consider the following twenty factors:

  Length of marriage
•   Conduct of the parties during marriage
  Age of the parties
  Health of the parties
  Station of the parties
  Occupation of the parties
  Amount of income of the parties
  Sources of income of the parties
  Vocational skills of the parties
  Employability of the parties
  Estate of the parties
  Liabilities of the parties
  Opportunity of the parties to acquire future capital assets
  Opportunity of the parties to acquire further income
  Contribution of the parties in the acquisition of their Estate
  Contribution of the parties in the preservation of their estate
  Contribution of the parties in the appreciation of their estate
  Contribution of the parties as a homemaker in the family unit
  Needs of the parties
  Needs of the children

Two of the most important factors when awarding alimony are the length of the marriage and the difference in the incomes of the parties. Judges are less likely to award alimony in shorter marriages even with significant differences in income and much more likely to award alimony in longer term marriages with income differentials.
 Alimony payments are deducted from income for the payor and included in income by the payee for tax purposes.  Alimony or support payments are not awarded for marriages lasting less than two (2) years.

CHILD CUSTODY
Decisions of child custody are based on what is in the best interests of the child(ren).  There are two types of child custody in Massachusetts: 1) Physical custody; and 2) Legal custody.  Physical custody means in whose custody or which household the child will reside on a day to day basis.  Legal custody means the party or parties to whom authority is designated to make major health, education and welfare decisions for the child.

It is common for the Courts to award and it is preferred that the parties agree to joint legal custody.  However, in cases of abuse, neglect or when the parents are unable to effectively communicate with each other in the best interests of the child, the Courts will award sole legal custody to one party.  The Courts are also reluctant to remove a child from the household in which they are currently residing without strong reason, such as the presence of drug and/or alcohol abuse, psychiatric problems, or a stubborn refusal to comply with court orders.

In contested cases, the court may appoint a family service officer or a Guardian Ad Litem (G.A.L.) to investigate and make recommendations in the best interest of the child during the course of litigation.  While family service officers are officers of the court, G.A.L's are usually private individuals. Therefore, if the parties are not indigent, the G.A.L. will usually be paid out of pocket by one or both parties. The attorneys for the parties may agree upon a particular G.A.L. and submit the name to the judge for appointment or the judge may select the investigator from a court maintained list.   The investigator will interview the parents, children, teachers, doctors, grandparents and whomever else the investigator deems necessary to the investigation. A report and recommendations are then issued.


CHILD SUPPORT

Child support in the Massachusetts is determine by the Probate and Family Courts through the child support
guidelines. The guidelines are presumed to apply in all child support cases. The incomes of the parties, childcare expenses, the cost of health insurance and any previous child support orders of the non-custodial parent, are all factors in the computation of the guideline amount.  Judges have considerable discretion under the guidelines. Child support is not taxable to the recipient nor is it deductible by the payor. The courts and parties may allocate the income tax exemption and child care exemption for each tax year while the child(ren) are unemancipated.

REMOVAL OF CHILDREN FROM THE COMMONWEALTH OF MASSACHUSETTS
After a divorce case is filed either party is restrained from removing any child from the Commonwealth of Massachusetts. When a party seeks to remove a child from the Commonwealth on a permanent basis, the court will apply a "real advantage" test. The courts are aware that allowing a parent to remove a child may impact the relationship between the child and the non-custodial parent.
 
Furthermore, the courts are also aware that once a child has resided out of Massachusetts for a period exceeding six months, Massachusetts loses jurisdiction over custody and visitation matters pertaining to the child.

VISITATION WITH CHILDREN
Probate Court Judges tend to feel that it is generally in the best interests of the child to maintain a relationship with the non-custodial parent and will try to maintain and encourage such a relationship except in situations where a the child's safety would be in danger.  Dangerous situations involve those where there is a history of physical abuse, sexual abuse, psychological abuse and presence of drug and/or alcohol addiction.  Judges do not like to totally restrict or cut off a parent’s visitation rights and will usually find another route such as reducing the frequency and/or length of visitation; restricting overnight visitation; or ordering the visitation periods to be supervised.   
 

SEPARATE SUPPORT

The principal purpose of an action for separate support is to compel a spouse to furnish support for his or her abandoned spouse and minor children during the term of the marriage and the time that the cause for separation exists. 

PATERNITY
Paternity actions in Massachusetts include the establishment of paternity, child support, and visitation rights.  A child born out of wedlock refers to any child born to a man and woman who are not married to each other. Every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance to the age of twenty-one and can even extent to twenty-three.  The Courts will order DNA testing to determine paternity and to disestablish paternity.  Once paternity has been established by the court, the father will be ordered to pay child support which may be retroactive to the child's date of birth.

ADOPTION
According Massachusetts law, a person of full age may petition the probate court in the county in which s/he resides to adopt as his child another person younger than himself, excepting his or her wife or husband, brother, sister, uncle, or aunt, whether whole or half blood.  No decree of adoption shall be entered for the adoption of a child under the age of fourteen until one of several conditions has been met:

  • The child sought to be adopted has been placed with the petitioners for adoption by the department of social services or its authorized agent;
  • The petitioner is a blood relative of the child;
  • The petitioner is step-parent of the child;
  • The petitioner was nominated in the will of a deceased natural parent of the child as a guardian or an adoptive parent; or
  • The petition for adoption has been approved in writing by the department of social services or by its authorized agency.

Every decree of adoption entered by the court shall include the words "This adoption is final and irrevocable." 

GUARDIANSHIPS
A guardianship petition is typically brought by a person seeking custody of a minor child who is not the parent of that child.  Family members (other than the mother or father) are often appointed as Guardians.  If the parents agree that you should be appointed guardian of the child, the court process is relatively simple.

MODIFICATIONS
Once your divorce is final, any significant changes which occur may warrant the filing of a Complaint for Modification.  You should contact one of our attorneys to discuss the details of the situation.  Generally, child-related matters are modifiable if there has been a material change in circumstances. Matters involving property division, however, are almost always non-modifiable. Alimony or health insurance may sometimes be modifiable if a separation agreement is written in a manner that allows such modification

 


PROPERTY DIVISION

Courts will consider several in determining property division pursuant to divorce:

• Length of marriage
• Conduct of the parties during marriage
• Age of the parties
•  Health of the parties
• Station of the parties
• Occupation of the parties
• Amount of income of the parties
• Sources of Income of the parties
• Vocational skills of the parties
• Employability of the parties
• Estate of the parties
• Liabilities of the parties
• Opportunity of the parties to acquire future capital assets
• Opportunity of the parties to acquire further income
• Contribution of the parties in the acquisition of their Estate
• Contribution of the parties in the preservation of their estate
• Contribution of the parties in the appreciation of their estate
• Contribution of the parties as homemakers in the family unit
• Needs of the parties
• Needs of the children

Any property in which either spouse has any type of interest (no matter whose name it's held in or how titled) may be considered marital and subject to division during a divorce.
  Any of the above-noted factors that are relevant to the case may be taken into account by the court in determining the division of marital property.  It is important to realize that not all marital property will be divided.  For example, it is often possible to exclude certain assets and/or liabilities, such as assets acquired prior to marriage, gifted or inherited assets, and liabilities incurred for luxury items or educational expenses benefiting a single spouse.

 


 

 
 
 
 

 

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult us or another attorney for individual advice regarding your own situation.


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Disclaimer This is an advertisement. The Law Office of Andrea R. Reid limits its practice strictly to Federal immigration and consumer rights laws, both of which are Federal practice areas, as well as Massachusetts divorce and personal injury laws and we do not claim expertise in the laws of any other states other than Massachusetts where we are licensed. The Law Office of Andrea R. Reid does not retain clients on the strength of advertising materials alone but only after following our own engagement procedures (e.g. interviews, conflict checks, retainer agreements). The information contained on this site is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on information
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