Frequently Asked Questions

Filing for Divorce

Is there an advantage to filing for divorce first?

There is no advantage to filing first. The person who files first is called the plaintiff, and the other spouse is called the defendant.

How long will it take?

The length of time between filing and finalizing a divorce varies from couple to couple. The more complex or contentious the situation the longer it will take. Other factors such as children or complex assets may also make the process take longer. If you and your spouse are in agreement about much of the property division and parental rights, the process will likely be shorter. You can probably expect your contested divorce to take up to a year or more, but you may obtain a hearing within weeks of any time the case settles.

Will we have to go to trial, or can we agree on some things?

Any time parties can come to an agreement on their Divorce Agreement, I encourage it. Agreement through negotiation outside of court not only shortens the length of time it takes for the divorce, but fosters a healthier emotional environment whenever there are children involved, and saves you money that would otherwise be spent in litigation. If negotiation cannot resolve every issue, those issues will be heard by a judge in the domestic relations court. The judge will decide the issue. When appropriate, that decision can be appealed. Litigation is a lengthier, costlier, and emotionally draining process, however if it is necessary, we will aggressively advocate our client's interests that are at stake.

What if my spouse tries to sell our property, or drain the bank accounts?

Temporary restraining orders are typically filed along with the petition for divorce. The purpose of these restraining orders is to prohibit the other spouse form disposing of assets, accruing additional debts, taking off with the children, and from harassing the petitioner.

How much will the divorce cost?

Every case is unique in its circumstances. Therefore, it is impossible to assess the actual cost of your divorce. The Law Offices of Deirdre O'Brien bill at an hourly rate, and normally require a retainer before commencing their representation. The actual fees and required retainer can be discussed at your initial consultation.

What is the difference between a legal separation and a divorce?

There is no actual "legal separation" in Massachusetts. However, you may decide you do not wish to end the marriage, but rather, live apart from your spouse for an indefinite period of time. In such an instance, you could seek the Court's assistance in establishing ground rules as to custody of your children, visitation, child support and spousal support by filing a Complaint for Separate Support, Custody and Visitation. This action would not resolve issues concerning division of your assets and liabilities, nor would it dissolve the marriage. Therefore, proceeding in this fashion is cautioned and should be discussed with your attorney.

A divorce dissolves the marriage and would resolve all issues of the marriage including custody, visitation, child support, spousal support, health insurance, as well as division of the marital assets and liabilities.

Can I date while I am going through the divorce?

Even if you are no longer residing with your spouse, it is best not to be openly dating. However, you should be extremely cautious not to introduce your children to your new partner too soon. Your children's needs and emotional well being should be the most important guide for you. Finally, being discreet may prevent emotions from escalating and otherwise aggravating your spouse. It is best to use caution regarding social media, Facebook, email as all electronic communication and documents may be investigated.

What is Mediation?

Mediation is the process by which a neutral attorney meets with both parties. The mediator discusses settlement options with them and helps them come to a final decision regarding all the issues in their divorce, without court intervention. The mediator does not represent either party, but instead acts as a neutral to help them come to an agreement. The mediator then drafts a settlement agreement which becomes a final judgment.  For more information regarding mediation click here.

What if I want a divorce, but my spouse is the primary bread-winner?

When the petition for divorce is filed, a temporary order can also be filed to request temporary spousal and/or child support. The terms of this order may end up being changed or terminated once the divorce is finalized, but it will allow the court to determine if spousal support is necessary and how much should be allocated while the divorce is pending.

What is a "no fault" divorce?

A no fault divorce is like an uncontested divorce, but differs from a contested divorce in several ways. In a contested divorce, the plaintiff files a compaint for divorce first to get the ball rolling. At the time of filing, or shortly after filing, temporary orders will be sought to protect the parties and their children, and the families assets while the terms of a Divorce Agreement are negotiated or until the court can divide property and debts and allocate parental rights. While the negotiation of the Divorce Agreement is in the works, a party can compel the other party to disclose assets and provide documents pertaining to assets and debts. This process is called discovery. After all of the terms of the Divorce Agreement are finalized, or after the court divides the property and parenting issues, the divorce can be finalized. From beginning to end, a divorce can take a up to a year or more to finalize.

In a "no fault" divorce, the parties negotiate out the terms of their Divorce Agreement and put that agreement into writing. Unlike a contested divorce, there are no temporary orders filed in a "no fault" divorce, and there is no opportunity for discovery. This agreement must cover all aspects of property division, support, parental rights, and division of debts. After both parties have signed the agreement, a joint Petition for "no fault" divorce is filed with the court and a judge decides whether to dissolve the marriage. After the filing of the petition, the hearing is scheduled within weeks. This may seem like a faster process than a divorce, but in actuality all of the heavy lifting was done prior to filing, whereas all of the work in a contested divorce is done after filing. Negotiating the terms of a "no fault" divorce may take months to resolve, and the husband and wife must be in complete agreement on all of the terms. For some parties, this process offers a faster, less costly, and less contentious, however it is not a process that works for everyone.

Whether it is a contested divorce or "no fault" (uncontested), both parties are typically represented by an attorney. Deirdre O'Brien can assist you in deciding whether this is a process that is appropriate for you.

What if I don't know what kind of assets or debts are of the marriage?

It is not uncommon for one party to be in the dark on the exact nature of their marital assets or debts. Deirdre O'Brien can assist these parties by engaging in the process of discovery, which would require the other party to produce documentation of the assets and debts that exist within the marriage. Once this information is disclosed, we can begin to divide the property and debts equitably.

Will I get / pay spousal support (alimony)?

It depends. Spousal maintenance is not a guarantee, and a number of factors are taken into consideration when the court decides whether to order spousal support. Some of the factors that are considered are: the length of the marriage, the age and health of the parties, the earning capacity of the parties, and the parties marital life style.

How is the property divided?

If there is no pre-nuptial agreement, each spouse is to receive an "equitable distribution" of marital property. Equitable distribution means that the marital property is divided in a fair and equitable manner. Typically, but not always, an "equitable distribution" is a fairly equal division of property. There may be situations where an equal division of property is not actually equitable. In such instances, one spouse might receive more than the other.

Conflict often surrounds the determination of whether or not one person has made significant contributions to a certain asset. As a general matter, contribution issues arise when one person wants to exclude property that was brought into the marriage, inheritances, or gifts received during the marriage. Often times, when a party has brought assets into the marriage, or has received inheritances or gifts during the marriage, these assets have been mixed with other marital assets. If that is the case, it may be necessary to trace those assets to their origins so that the court can determine what and how much of that property should be divided. A larger portion of the non-marital assets will likely be given to the party who brought them to the marriage. Valuation of property and determining the division of that property can be another source of conflict. Documentation and testimony may be necessary to reach a resolution on such property issues.

What if my spouse is abusive, or there is domestic violence in the home?

Divorce can be a particularly volatile time for any couple, and especially so if there is a history of abuse in the relationship. There are a number of special precautions that you should consider when leaving an abusive relationship, so as to protect the physical and financial safety of you and your family. Sometimes a restraining order can be sought to prohibit the abusive spouse from contacting you physically, by phone, or otherwise. A restraining order could also order the abusive party from the home or to turn over firearms.

What if my spouse has accused me of domestic violence?

A conviction for domestic violence or the issuance of a restraining order may complicate already contentious divorce and child custody issues. If a restraining order is issued, the Defendant may be prohibited from being physically near the Plaintiff or from contacting that person in any way. Other provisions might force you to leave your home or surrender firearms. Violating such an order carries criminal sanctions. Legal representation is important in such an instance to guarantee that your personal, financial, and parental rights are protected.

How much child support will I pay or be paid?

In most cases Massachusetts has established a formula that will be used to calculate the amount of support that should be paid. If your family income is greater than $250,000, the amount of support that will be paid is decided on a case by case basis.

Questions About Child Support

What if I need to modify our child support order?

There must be a significant change in circumstances for a support order to be modified. Examples of such changes in circumstance might include, but are not limited to, a parental relocation that alters the amount of visitation or custody arrangements, the loss of a job, a pay increase, serious illness, or bankruptcy.

How long will I have to pay child support?

Parents are typical required to support their children until they are 18 years of age or graduate from high school. However, if the child is a full-time college student, child support may continue until age 23 or graduation of college, whichever occurs first.  

What if our total family income is over $ 250,000?

These child support determinations are made on a case by case basis. Legal representation is an important part of ensuring that your child support order is fair and appropriate.

Questions About Child Custody

How is custody determined?

• Allocation of parenting rights are usually addressed in a Parenting Plan or determined by the court when there is a divorce or dissolution of marriage.
• If the parents of a child are unmarried at the time that the child is born, the mother is considered to legally have custody of the child unless the father has gone through the process of establishing paternity and seeking custodial rights through the court.
• In both instances, the court will consider a number of factors including the wishes of parents, and if appropriate the wishes of the child. The court will examine the child's interaction with parents, siblings, and third parties who might affect the best interests of the child. Other considerations might include the child's adjustment to home and school, the mental and physical health of the parents, or which parent is most likely to foster a relationship between the child and the other parent. Domestic violence or child abuse convictions might be considered as well. All of these and many other factors will be examined to determine a custody arrangement that is in the best interests of the child.

I am not married to my child's mother, do I have custody?

Legally, an unmarried mother has custody of the child. A father in this situation might have to establish paternity and seek custodial rights through the court system.

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