Q. What should I do if my spouse and I decide we are going to get divorced?
A: The first thing you should do is discuss is whether you both want to proceed using mediation, collaborative law or litigation. If you are unsure about what’s the best option—or are unaware of your options—speaking to an attorney who practices in all three areas would be the first step.
Q. What should I do if my spouse tells me that he or she has filed a Complaint for Divorce or if I am served with a Summons and Divorce Complaint?
A. You should hire an attorney to file an Answer to the Complaint. This is also a good opportunity to discuss whether you and your spouse might want to consider mediation or collaborative law.
Q. What are some questions I should ask an attorney before hiring one?
A. First, you should always get a sense of the attorney’s approach to divorce litigation vs. mediation or collaborative law to make sure that he or she is a good match for you. You should also ask the attorney to discuss his or her hourly rate, billing practices and required retainer.
Q. How long does it take to get a divorce?
A. Every divorce is different but the most significant factor in how long a divorce takes is how much “discovery” is needed. Discovery is the exchange of financial and factual information relevant to a divorce. One of the benefits of mediation and collaborative law is that the exchange of discovery is voluntary and usually costs less than divorce litigation.
Q. What is a legal separation?
A. Massachusetts does not recognize legal separation as a distinct legal status before a divorce is entered. There is something called Separate Support for people who wish to live apart from each other without a divorce but this is not a first step towards divorce. If you and your spouse file for Separate Support and then decide to get divorced, you will have to start from scratch.
Q. What is custody and visitation?
A. Custody and visitation are legal terms that address arrangements between parents and their children. These terms are often emotionally charged and courts today often favor discussing parenting plans as an alternative.
Q. What is child support?
A. Massachusetts has adopted child support guidelines that are a presumptive formula for how much child support, if any, is to be paid by one parent to the other while the children are dependents. The formula considers a number of factors including the parenting arrangements, the income of the parties, and child care and insurance costs.
Q. Must I get divorced in court?
A. Although most parties ultimately settle the terms of their divorce between themselves, a judge will still need to review your divorce agreement and find that it is fair and reasonable. Therefore, a divorce usually requires at least one trip to court.
Q. How do I file for a no-fault, uncontested divorce in Mass.?
A. If you and your spouse are able to agree on the terms of your divorce and have prepared a Divorce Agreement individually, through mediation, or with the assistance of counsel, you can file a Joint Petition for Divorce instead of filing a Complaint for Divorce.
Q. What is Divorce Mediation?
A. This is a way to negotiate the terms of a divorce directly with your spouse with the assistance of a divorce mediator.
Q. What exactly is a mediator?
A. A mediator is someone who is neutral and helps you and your spouse to discuss possible terms of divorce and well as alternatives. A mediator can help you fill out paperwork and give you options. A mediator cannot give you and your spouse legal advice nor can he or she tell you how to settle your divorce.
Q. Why not let the courts decide?
A. There are a lot of reasons to resolve matters by agreement. One of the most compelling reasons is that a judge will never have as much time to learn about you and your family’s situation than what you already know. Second, there is a significant cost savings to minimizing court time.
Q. How long does divorce mediation take?
A. The average mediation takes between three and five two-hour sessions. It should be noted that the more complicated the mediation, the more time it will take.
Q. Will I get a better result through mediation than going to court?
A. Better is relative. The goal is to get a result that is more directly tied to your and your family’s needs rather than the more cookie-cutter approach that a judge is required to follow. This should provide a better result.
Q. What is the mediation process? Is it confidential?
A. Massachusetts law provides that if you sign a mediation agreement the discussions that take place in mediation are privileged, and thus confidential. The only caveat is that some mediators are mandated reporters and are required to report abuse or neglect of child, even if discovered during mediation.
Q. What if I don’t like the way mediation is going?
A. Either party can withdraw from mediation at any time. The best practice is to be direct and forthright with the mediator and your spouse about your concerns and try to resolve things within the context of mediation.
Q. What is collaborative divorce?
A. Collaborative divorce is a process for trying to negotiate the terms of the divorce with collaboratively trained attorneys. This often includes a divorce coach and financial- or child-oriented professionals who will provide the collaborative team with feedback on relevant issues in the divorce. The parties sign a contract saying they will resolve disputed issues by negotiation rather than presenting the issues to a judge for resolution.
Q. How is collaborative law different than mediation or traditional divorce?
A. In mediation, the parties may have attorneys but those attorneys are usually not present during the mediation sessions. In traditional divorce litigation, if you and your spouse can’t resolve matters, you go to court and ask the judge to decide. In collaborative divorce you and your attorneys will negotiate in ways that are similar to mediation. The goal is to understand the needs and concerns of both you and your spouse and to find solutions that are as close to a win/win as possible.
Q. What can I expect?
A. In collaborative law, you can expect to have a lot of assistance from counsel and neutral coaches, financial advisors and child experts. Although your attorney will be your advocate, you can expect the team to try to find a solution that works for both you and your spouse.
Q. What if the collaboration process does not go well?
A. Although you can withdraw from the collaborative process at any time, you will have to hire new counsel and start over. The best practice is to be clear with your attorney and the team about your concerns and to try to address those in the context of the collaborative process.