Should you Pursue Litigation First?

This Article discusses Litigation in a Divorce Case in Massachusetts. It is not meant to provide legal advice, but is for informational purposes only.

After realizing that a marriage is over, one’s first reaction may be to rush over to the court house to file a divorce action to get a divorce quickly.  Is it realistic in a divorce case to get an immediate divorce in Massachusetts, where all issues are not already resolved completely and a Separation Agreement is not signed in front of a Notary Public?

Litigation Is Often Not Quick and Could Be Costly

Unless a Separation Agreement is signed in front of a Notary Public and completed with all of the issues addressed properly and other required paperwork is done correctly, a divorce may  not be  “quick”.  There are time standards in Massachusetts where a divorce needs be completed within 14 months of filing.  Litigation in the family law area could be financially and emotionally costly.

What Happens During the 14 Months?

The procedure for litigation in the Probate and Family Court in Massachusetts is a Complaint for Divorce is filed with the required documents with the filing and Summons fees.  The  Complaint for Divorce and a Domestic Relations Summons are served on their spouse by a Deputy Sheriff or Constable.  If the spouse is at home especially if there are children  when the Deputy Sheriff or Constable comes by, it could cause some stress and upset on the couples children and the spouse who receives the documents. It gets expensive due to time spent for legal fees to pursue Discovery, time spent in court for temporary orders and to try the case.

Discovery

There are certain requirements that need to be followed in Massachusetts regarding an initial exchange of documents. The procedure per the “Supplemental Probate and Family Court Rule 410: Mandatory Self Disclosure” generally includes: within 45 days after service is made, each party has to exchange certain documents with the other, such as three years of bank statements, tax returns and retirement information, four recent pay stubs, evidence of health insurance, a Financial Statement  and other documentation.   This rule is helpful for practical reasons especially if one spouse pays the bills and the other does not know what money has been spent during the marriage and so they can be on the same playing field.  In Massachusetts, once the Complaint for Divorce is filed for the Plaintiff and the other spouse is served, there is an order in the “Supplemental Probate and Family Court Rule 411: Automatic Restraining Order” which orders that  both parties are not permitted to sell their home and other marital assets, stop insurance, etc. However, each spouse can pay regular bills, invest in the ordinary course of investing and pay legal fees.  Otherwise, if a party needs to sell their car, for example, that party would need a  court order or written agreement of both parties.

Other formal Discovery can be pursued such as Interrogatories (legal questions), Request for Production of Documents and Depositions.  There are time limitations when the documents need to be provided and Interrogatories need to be answered and the Rules of Domestic Relations Procedure need to be complied with by each party.

Temporary Orders

How does one get by until a Trial without knowing who will pay what bills?  Motions for Temporary Orders can be filed in court seeking temporary orders from the court on who pays the mortgage or rent and other household expenses, who pays child support,  what is a temporary parenting plan on who will care for children on a schedule weekly and on holidays and how the uninsured medical expenses can be paid and other matters, pending the trial.

Court Hearings before Trial

After filing, in an contested no-fault Divorce, a Pretrial Conference can not be scheduled until six months after filing the Complaint for Divorce.  However, there is a Case Management Conference in Massachusetts scheduled 90 days after Service of the Complaint and Domestic Relations Summons.

Before the Pretrial Conference is scheduled, both spouses have to sit down together with their attorneys at least a week before the Pretrial Conference unless there is a restraining order precluding such contact.  A Pretrial Conference Memorandum needs to be completed by both parties and often needs to be filed with the court three days before the hearing. At the Pretrial Conference, the judge can try to help the parties resolve the case.  If the case does not settle at the Pretrial Conference, the case is scheduled for trial.

Trial

The trial could be scheduled in some counties in Massachusetts many months away.   Trial dates could be a day or more than one day.  However, it is subject to the court’s busy schedule.

At the trial, each party has an opportunity to have witnesses testify in court on their behalf and their attorney can cross examine the other spouse’s witnesses.   Documents, which are admissible pursuant to the Rules of Evidence can be given to the judge for review.   If each spouse is paying for counsel then this process gets expensive.  After the trial is completed, the judge will take the matter under advisement, which means that the decision will be mailed after a decision is made.

Conclusion

After the 14 months, is the Litigation route worth it due to the wait and expense?  Alternative Dispute Resolution like Mediation or Collaborative Law are usually better ways to resolve a divorce case.

(c) Copyright 2015. Debra L. Smith. All Rights Reserved.