Massachusetts Divorce Laws

Important Areas of the Law


In order for a probate and family court to properly hear a divorce case, it must have two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. With respect to both personal jurisdiction and subject matter jurisdiction, the burden is on the party asserting jurisdiction to prove jurisdictional facts. Personal jurisdiction rules determine whether a court has power over a particular defendant, whereas subject matter jurisdiction establishes the court's power to hear the specific kind of claim that is brought to that court. In order for the court to exercise personal jurisdiction over a spouse to a divorce or separate support action, the spouse filing the divorce or separate support action first must prove by a preponderance of the evidence that the terms of M.G.L. c. 223A, §3(g), commonly referred to as the "Massachusetts long-arm statute" have been satisfied. M.G.L. c. 223A, § 3 (g), provides, in pertinent part: "A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's; maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, child support or child custody; or the commission of any act giving rise to such a claim. Once personal jurisdiction has been established, the court must determine whether it has subject matter jurisdiction. Under Massachusetts law, subject matter jurisdiction is based upon the following three factors: (1) the residency of the parties; (2) the cause that led to the divorce; and (3) the motive of the party filing for divorce. Pursuant to M.G.L. c. 208, §4, a divorce may be granted to parties if a cause for divorce occurs in another jurisdiction where the parties have "lived together as husband and wife in this commonwealth" and where one party lived in the Commonwealth when the cause for divorce occurred. Pursuant to M.G.L. c. 208, §5, a divorce may be granted if the plaintiff is domiciled in the Commonwealth when the action is commenced, the cause occurred in the Commonwealth, and the plaintiff did not come to the Commonwealth for the purpose of obtaining a divorce.


Venue is defined as "the county or district within which a civil case must be heard." M.G.L. c. 208, §6 states that, 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."

Grounds for Divorce:

In 1975, the Massachusetts Legislature added "an irretrievable breakdown of the marriage" as a ground for divorce. A divorce granted upon an irretrievable breakdown of the marriage is commonly referred to as a "no-fault" divorce. There are two statutes under which a no-fault divorce may be obtained in Massachusetts. First, a divorce may be entered pursuant to M.G.L. c. 208, §1A. This occurs when both parties agree that an irretrievable breakdown of the marriage has taken place and file a Joint Petition for Divorce along with a written divorce agreement addressing all substantive issues in the case. The so-called "1A" case can be heard and a Judgment of Divorce Nisi entered right away, however, the divorce does not become absolute and final until 120 days have passed from the date of the Judgment. Second, a divorce may be entered pursuant to M.G.L. c. 208, § 1B when one party files a Complaint for Divorce alleging that an irretrievable breakdown of the marriage has taken place yet the parties are unable to, at least at that point in time, submit a written divorce agreement to the Court. Pursuant to M.G.L. c. 208, §1B, the parties must wait six months to obtain a Judgment of Divorce Nisi, that is, unless the parties are able to reach a written agreement prior thereto. If such an agreement can be reached, the parties may amend their Complaint for Divorce under 1B to a Joint Petition for Divorce under 1A. With respect to 1B divorce, after the hearing takes place and a Judgment of Divorce Nisi is entered, the divorce is not final until ninety days have passed from the date of the Judgment.

As a practical matter, fault divorces are an increasingly rare site in modern day divorce practice. Despite the availability of a no-fault divorce where a divorce may be granted purely on the fact that the marriage is irretrievably broken, seven so-called "fault grounds" are still on the books in Massachusetts should a spouse choose to go in this direction. Fault grounds must be proven in order to obtain a divorce wherein a spouse does not allege in the alternative that a no-fault divorce should be granted. Pursuant to M.G.L. c. 208, §1, the grounds for a fault divorce are the following: Adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, 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. Filing for divorce on a fault ground rarely provides leverage or an advantage to the filing party. This is primarily due to the fact that a judge must take into account each spouse's conduct when making a determination of alimony and how to equitably divide property under 1B even if no fault grounds are alleged. Unless there is some psychological or principled reason to file for divorce on a fault ground, the only practical advantage of alleging a fault ground is that it provides a mechanism to avoid the six month requirement for a Judgment of Divorce Nisi under 1B, and that is assuming that one can even obtain a trial date prior to the expiration of six months, a monumental challenge in and of itself.

Legal Separation:

Contrary to a commonly held belief among lay persons, Massachusetts does not have a procedure called "legal separation." However, according to M.G.L. c. 209, §32, "If a spouse fails, without justifiable cause, to provide suitable support of the other spouse, or deserts the other spouse, or if a married person has justifiable cause for living apart from his spouse, whether or not the married person is actually living apart, the probate court may make …orders relative to the support of the married person and the care, custody and maintenance of minor children." Proceedings under this statute are designed to secure the temporary support of a spouse who is separated from his or her spouse for just cause, while the marriage relation exists and the cause for separation continues. A decree under the statute does not create a judicial separation, nor establish a permanent status for the future. While a probate court may not provide for a division of marital assets in the context of a separate support action, a probate court may upon motion of a person whose spouse has abandoned him or her and thereby left the abandoned spouse and his or her dependents without sufficient means to maintain themselves may…authorize the moving party to sell, convey, mortgage, receive or receipt for any real or personal property of the opposing party which remains in the commonwealth undisposed of by him or her…, and to use and dispose of the same or the proceeds thereof during the absence of the opposing party as if the moving party were sole."

Equitable Division of the Marital Estate:

Massachusetts is a so-called "equitable division" state whereby assets and liabilities that comprise the marital estate are divided pursuant to the judge's consideration certain factors set forth in M.G.L. c. 208, §34. In making an equitable division of property under §34, the judge must consider "all the relevant factors" identified by the statute and must not consider "irrelevant factors," i.e., factors outside those listed in the statute. The equitable factors stated in M.G.L. c. 208, §34 reflect a view of marriage as an implied partnership for the purposes of distribution of property. The purpose of M.G.L. c. 208, §34 is to provide a mechanism whereby, no matter how the property has been acquired or how it is held, the court can distribute it between the parties in such a way as to provide for balanced disposition and economic justice. There is no mathematical formula to determine what weight a judge should accord to any of the factors in §34. The weight to be given each factor in a particular case, in fashioning a judgment under M.G.L. c. 208, §34, is left to the discretion of the trial justice. The Massachusetts courts have consistently held that an equitable division of property does not result necessarily in an equal division. The mandatory factors for property division are now "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under M.G.L. c. 208, §§ 48- 55. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The discretionary factors are "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

Child Custody:

Physical and Legal Custody
Under Massachusetts law, there are two categories of custody concerning minor children: physical custody and legal custody. M.G.L. c. 208, §31 defines the following terms:

In determining which parent or parents shall have physical or legal custody, Massachusetts courts adhere to the best interest of the child standard. According to M.G.L. c. 208, §31, "custody may be awarded to either parent, and there shall be no presumption either in favor of or against shared legal or physical custody." If parents agree on custody the courts will generally go along with it unless it is not in the best interest of the child. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health. If the parents mutually reach an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children. If the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, 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. The court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action.

Grandparent visitation
Grandparents in Massachusetts can petition for visitation if the child's parents are divorced or separated, if a parent is deceased, or if the child was born out of wedlock but paternity has been established (for paternal grandparents). M.G.L. c. 119, §39D allows the court to grant visitation if doing so is in the child's best interest, however, a parent's decision to not allow visitation must be given "presumptive validity. To succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.

Marital Agreements:

Premarital agreements
Previously known as and referred to as "prenuptial agreements" or "antenuptial agreements," premarital agreements are recognized and enforceable (with certain criteria being met) under Massachusetts law. In Massachusetts, at any time before marriage, the parties may make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. A premarital agreement is enforceable only if a judge determines the agreement to be valid. When determining the validity of an agreement, the court must assess whether (1) the agreement contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party's worth prior to the agreement's execution, or had, or should have had, independent knowledge of the other party's worth; and (3) a waiver by the contesting party is set forth. To be enforceable, the premarital agreement must also be fair and reasonable at the time of divorce. The so-called "second look" at the agreement at the time of divorce is to ensure that the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution. The agreement must be enforced unless circumstances such as the mental or physical deterioration of the contesting party, or erosion of promised support by inflation, would lead the court to conclude that the agreement was not conscionable and that its enforcement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support himself or herself.

Marital Agreements
Whether marital agreements, previously known as and referred to as "post-marital agreements," should be recognized in Massachusetts was a long-deferred question in the courts. Ultimately, in 2010, the highest court in Massachusetts, the Supreme Judicial Court, joined with the majority of states that had addressed the issue in concluding that such agreements may be enforced. The SJC held that its ruling that marital agreements are enforceable was consistent with its established recognition that a marital relationship need not vitiate contractual rights between the parties, however, simultaneously noted that marital agreements must be carefully scrutinized as parties to a marriage are not dealing at arm's length. Before a marital agreement is sanctioned by a court, careful scrutiny by the judge should determine at a minimum whether (1) each party has had an opportunity to obtain separate legal counsel of each party's own choosing; (2) there was no fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce. Where one spouse challenges the enforceability of the agreement, the spouse seeking to enforce the agreement shall bear the burden of satisfying these criteria. A party seeking to enforce an agreement must show that the other party's consent to it was informed and not obtained under duress.

David M. Baker, Esq.- your Massachusets and Rhode Island Divorce & Family Law Attorney!



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