Family Law 2024 Comparisons

When considering the grounds for divorce, Massachusetts first considers whether a person is seeking “fault” or “no fault” grounds for divorce. Either you are seeking to prove that the other party is at fault for ending the marriage (“fault”) or, much more commonly, that the marriage has irretrievably broken down with no hope of reconciliation (“no fault”).  “Fault” grounds include adultery, desertion, impotency, gross and confirmed habits of intoxication, cruel and abusive treatment, or non-support. In divorce matters, there is no distinction in the law between same-sex spouses and heterosexual spouses under state and federal law. For unwed partners in Massachusetts, civil partners can be registered as “domestic partnerships”. Should the couple seek to separate, they do not need to seek a divorce to terminate their partnership, but will, instead, need a termination form.

To obtain a divorce in Massachusetts, one or both parties must file the requisite pleadings with the Probate and Family Court. Massachusetts does not require a period of separation prior to filing.  There are two tracks for filing for divorce: either both parties jointly seek a divorce (uncontested) or only one party seeks a divorce (contested). Both tracks require the parties to submit court forms that are listed on the Massachusetts Probate and Family Court website as well as payment of a filing fee. For uncontested divorces, parties will need to submit a fully executed Separation Agreement, and the parties will immediately be given a hearing date to appear before a judge who will make a determination as to whether the agreement is fair and reasonable. Contested divorces are assigned to a 14-month track; however, the length of a divorce varies widely from case to case. During the pendency of a contested divorce, the parties are required to attend what is called a Pretrial Conference and at any time may request temporary orders until there is a final resolution, either with the entry of a judgment or with the filing of a duly executed separation agreement.

Once a contested divorce is filed, the filing party will receive a summons from the Probate and Family Court. The filing party then has 90 days from the date on the summons to serve a copy of the complaint for divorce and summons on the defendant. Service of the initial complaint for divorce must be made by a constable/sheriff, process server, or other individual authorised by law and must be delivered in hand to the defendant. The rules do permit alternate means of service if the defendant cannot be located.

While religious marriages are recognised by the Commonwealth of Massachusetts (assuming the marriage is conducted by a religious organisation that is licensed to do so through the state), a religious divorce is not.

Massachusetts does not have “legal separation” but does permits married parties to file a Complaint for Separate Support under Massachusetts General Law Chapter 209, Section 32 and requires that there be a “justifiable cause” for living apart. The statute provides parties a remedy to secure spousal support (ie, alimony and health insurance), child support, or child custody while remaining married. 

In order to obtain an annulment, the court requires either party to file a complaint for annulment and the plaintiff must specify the basis for the request, such as incest, consanguinity, affinity, polygamy, or fraud.

In broad strokes, Massachusetts will have jurisdiction over divorce proceedings if one of the parties has been a Massachusetts resident for one year prior to filing. In the alternative, if one of the parties can provide that they were domiciled in Massachusetts at the commencement of the divorce action and the cause for divorce occurred in Massachusetts, the divorce proceeding may proceed assuming there is no evidence that the party intentionally moved to Massachusetts for the purposes of obtaining a divorce.

Massachusetts has a residency requirement prior to commencing divorce proceedings. The nationality of the parties is not relevant for purposes of determining jurisdiction; however, if a party is not a resident or domiciliary in the United States and/or Massachusetts, it may be difficult to assert personal jurisdiction or to enforce a judgment or court order.

A party to divorce proceedings who wants to contest jurisdiction can seek to dismiss the case by filing the appropriate pleadings in court. Those pleadings do not constitute admission of the court’s jurisdiction over the divorce and/or party.

Assuming a foreign court arguably has jurisdiction over the parties and the cause of the divorce, there could be cause to not proceed with the Massachusetts divorce proceeding.

For divorcing parties, jurisdiction to pursue financial orders (including, when applicable, alimony and child support) is satisfied when the jurisdictional requirements to initiate a divorce action (as outlined in 1.2 Choice of Jurisdiction) are satisfied. For unwed litigants with a child, jurisdiction to pursue financial orders is available when either an adjudication on an action to establish paternity is entered or voluntary acknowledgment of paternity is established. A party can initiate a complaint for separate support pursuant to Massachusetts General Law, c. 209C Sections 4 and 9 and petition the court to establish a child support order for the maintenance, support and education of a child in the county where one of the parents live; in the event neither parent lives with the child, then in the county where the child lives. 

If neither parent remained in Massachusetts, a litigant could potentially challenge Massachusetts’ ongoing jurisdiction in support proceedings if the child has a new home state. Specifically, in determining whether Massachusetts is the child’s “home state”, the court will look to whether the child has resided with one of the parents in Massachusetts for at least six consecutive months prior to the inception of litigation.

The courts can hear financial claims regarding a foreign divorce upon the domestication of the foreign judgment. Domestication of the foreign judgment can be by way of litigation upon the filing of a corresponding verified complaint seeking domestication of a foreign decree or order or, in the case of child support, by way of registration pursuant to Massachusetts General Law, c. 209D, which is Massachusetts’ statutory equivalent of the Uniform Interstate Family Support Act (UIFSA). 

In order to properly effectuate service of process in any action commenced in a Massachusetts Probate and Family Court, service of the complaint initiating the action and the summons that is issued by the court upon the filing of said complaint must be made upon the defendant to the action.

Pursuant to Mass. R. Dom. Rel P. (4)(a), the plaintiff initiating an action must serve the defendant by delivering the complaint and the summons issued by the court upon the filing of the complaint to a person duly authorised to serve process (ie, a sheriff/constable).

Pursuant to the Probate and Family Court’s Standing Order 1-06 regarding the time standard for matters filed in the Probate & Family Court Department, at filing, all Probate and Family Court matters regarding complaints for separate support are assigned to an eight-month track – with the goal of disposition within the aforementioned track designation.

Equitable division, not equal division, is the standard in Massachusetts for how marital property is divided between spouses in a divorce. Marital property is comprised of all assets held by either party at the time of divorce, whether titled jointly or individually, and regardless of when obtained. Unlike some other states, Massachusetts does not automatically designate certain property, such as premarital assets or inheritance, as belonging to one spouse or the other.

To determine an equitable division of marital property, the Massachusetts Probate and Family Court will weigh a variety of factors. Pursuant to statute, Massachusetts General Law, c. 208, § 34, the court is required to consider certain factors when making a determination as to equitable division, including:

• length of the parties’ marriage;
• each party’s conduct;
• each party’s age;
• each party’s health;
• each party’s station;
• each party’s occupation;
• each party’s income;
• each party’s employability and vocational skills;
• each party’s estate;
• each party’s liabilities;
• each party’s needs;
• each party’s opportunity to acquire capital assets and income in the future;
• any alimony award; and
• the needs of the parties’ children.

Pursuant to the same statute, courts may, but are not required to, consider each party’s contributions to homemaking and their estates.

At the outset of a divorce, each party must make certain financial disclosures. Supplemental Probate and Family Court Rule 410 sets forth numerous documents that must be exchanged between the parties, including income tax returns, pay stubs, bank and brokerage account statements, and loan applications. Supplemental Probate and Family Court Rule 401 also requires the parties to exchange financial statements using a court-prescribed form that sets forth each party’s income, assets, debts, and expenses.

The parties to a divorce action are also entitled to engage in discovery to collect relevant documents and information from each other, as well as third parties or entities. For example, a party may elect to take the other’s deposition, request that the other party provide additional documents (eg, credit card statements, life insurance documents, budgets and financial planning data, etc), or subpoena the other party’s employer for income records and employment information. The scope and method of discovery must comport with the Massachusetts Domestic Relations Procedure Rules and if not, the other party, or in some cases a third party or entity, can seek protection from the court.

There can be unique considerations when dividing certain types of assets or interests associated with a party in a divorce. For example, whether a party’s beneficial trust interest is considered marital property and subject to equitable division will require an extensive analysis of the trust and an assessment of whether the party’s interest is “fixed and enforceable” or is instead “too remote or speculative.” See Levitan v Rosen, 95 Mass. App. Ct. 248, 253 (2019). If a court determines a party’s trust interest is more akin to an “expectancy” and not marital property, the party’s interest may not be divided but could still be relevant to the court’s consideration of a party’s opportunity to acquire income and capital assets in the future. See id.

Massachusetts considers requests for spousal maintenance (“alimony”) on a case-by-case basis after review of the relevant facts. The overall standard for considering alimony awards is a recipient’s need and the parties’ financial circumstances (eg, payor’s ability to pay.) Key factors considered by the court in determining alimony include, without limitation, the length of the marriage, the age of the parties, the health of the parties, both parties’ incomes, both parties’ contributions to the marriage (both economic and non-economic), and the parties’ lifestyle during the marriage.

During the pendency of a divorce action, a party may apply for interim alimony by way of a Motion for Temporary Orders, which will be scheduled for a hearing. Each party is required to submit to the court current, accurate, and complete financial statement forms that identify each party’s income, expenses, assets and liabilities, prior to a motion hearing. Absent an agreement by the parties, the court has discretion to enter an alimony obligation through a temporary order, which will remain in place through the pendency of the action or until further order of the court. 

The court has the authority to order ongoing alimony upon entry of a judgment of divorce. The Massachusetts Alimony Reform Act of 2011 details the types of alimony available to a divorcing spouse, and sets specific guidelines for the length and amount of such alimony awards.

Prenuptial and postnuptial agreements are widely used and recognised in Massachusetts. They are often used to protect pre-marital wealth, future gifts or inheritances, beneficial interests in family trusts, and family businesses. They also often address issues of alimony and a surviving spouse’s right to the decedent’s assets if a marriage ends by death. The law in Massachusetts is well settled on the enforceability and process for entering into both prenuptial and postnuptial agreements. With respect to prenuptial agreements, practitioners generally look to Osborne v Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981), where the court held that, although such agreements are not per se against public policy, they must be the result of fair disclosure at the time of execution and must be fair and reasonable at the time of divorce. It is important that at the time of execution the parties make fair and accurate financial disclosures that are attached to the agreement as a financial disclosure statement and that both parties enter into the agreement freely, voluntarily, and not subject to any form of coercion, fraud, or duress. Generally, both parties have independent counsel although having counsel is not required to have a valid pre-nuptial agreement. If only one lawyer is involved in the matter the lawyer can only represent one of the parties – otherwise it is a conflict of interest. Practitioners also look to DeMatteo v DeMatteo, 436 Mass. 18, 762 N.E.2d 797 (2002) which confirmed that a prenuptial agreement must be deemed fair and reasonable at the time of enforcement. However, the definition of fair and reasonable in this context is not what a court would do under Massachusetts divorce law if there was no prenuptial agreement but rather the court concluding that the agreement is not unconscionable. If the agreement strips a spouse of all marital rights, then the agreement could be deemed unconscionable and found invalid at the time of enforcement.

Postnuptial agreements have been recognised as valid contracts in Massachusetts. Practitioners generally look to Ansin v Craven-Ansin, 457 Mass. 283 (2010) where the Supreme Judicial Court of Massachusetts articulated the standards to recognise validity and enforceability of such agreements. In Ansin, the court described the need for a heightened scrutiny when determining the validity of the agreement. The burden of proof is on the party seeking enforcement. For a postnuptial agreement to be found valid and enforceable, the court must find that (i) there was full financial disclosure; (ii) each party had the opportunity for independent counsel; (iii) the process was free from duress, coercion or fraud; (iv) any waivers were knowing and explicit; and (v) the agreement is fair and reasonable.

Unmarried cohabitants do not acquire any property rights under Massachusetts’ matrimonial laws. Rather, upon the breakdown of the relationship, unmarried couples may seek relief through the court’s equity powers. To establish a right to property, an unwed party can initiate a complaint in equity in those instances where a party’s contribution to property is substantial enough for the court to find that in order to avoid inequity (whether that be by the unjust enrichment of one party at the expense of the other) a situation existed of such trust and confidence that it would be inequitable not to bind one to act in good faith.

Likewise, unmarried parents may appeal to the court’s equitable powers in seeking to award a litigant who is facing the loss of a substantial property interest that is so impactful that a child can be immediately and directly left unprotected by the unjust enrichment of one party at the expense of the other. The Supreme Judicial Court in Massachusetts has provided relief to a litigant that was induced by a significant other into such a state of dependency where parties have been involved in essentially a family unit over a significant duration of time such that a constructive trust was necessary to avoid the unjust enrichment of one party over another.

The Massachusetts contempt statute, Massachusetts General Law, c. 215, § 34, provides the authority by which financial orders in Massachusetts, including alimony and child support orders, are enforced. Procedurally, if a party defaults on their obligation under a financial order entered during or after a divorce, the aggrieved party may file a complaint for contempt. Available forms of relief against a party found in contempt include specific, further financial orders, which may include sanctions and, in some instances, orders to participate in employment searches or training, and/or or sentencing to jail or community service. A party’s failure to comply with a child support order may also be punishable through a criminal contempt.

Provided that jurisdiction requirements are satisfied, the enforcement of a foreign financial order is available in Massachusetts upon the domestication and/or registration of the foreign order/judgment in Massachusetts.

In Massachusetts, divorce cases filed in the Probate and Family Court are part of the public record, and generally open to the public, including the press. Audio recordings of the hearing are also available by request. A particular judge may, in their discretion, decide to close the courtroom to the public and hold the hearing without anyone but the parties, their counsel, and court personnel present. However, that does not mean that an audio recording of the hearing is not available to the public upon request.

Pleadings in the Probate and Family Court are also considered part of the public record, and available either online or by requesting a case’s physical file at the registry in each courthouse. However, it is important to note that certain financial documents are considered confidential and will not be made available to anyone except the parties and their respective counsel of record. Personnel at the registry are expected to extract these documents before providing a member of the public with the file, and they are not available online. These private documents are the parties’ personal financial statements and child support guidelines. One should note, however, that the substantive pleadings themselves may include financial details, and those pleadings are not confidential.

Either or both parties may seek that a portion of the file, or the entire file itself, be impounded and, as such, be made unavailable to the public. Generally, these requests are rarely awarded. The judge weighs the countervailing interests – the party or parties’ right to privacy against the public interest in an open and transparent judicial system. In order to seek impoundment, a litigant must file a motion to impound along with a sworn affidavit that outlines what they seek to impound and the reasons therefore. It is then up to the discretion of the judge as to whether a file, or portions of it, should be impounded, and for how long, as there is typically a limitation on the length of time a file may remain impounded.       

Alternative Dispute Resolution mechanisms are resources that parties and attorneys often look to in order to help resolve disagreements in a divorce.

Many litigants look to mediation and conciliation before bringing a contested issue to court. In these forums, a third-party neutral trained in dispute resolution will mediate or conciliate the case. These neutrals are often retired probate and family court judges or attorneys with experience in the family law arena. Parties participate in these processes alone or with their attorneys, and can expect to spend anywhere between half-a-day to multiple days caucusing and negotiating in order to reach an agreement.

If an agreement is struck, the parties will often incorporate the terms into a full-fledged separation agreement that eventually is filed with the Probate and Family Court. After that, assuming the proper procedure is met, it becomes a judgment of divorce that is enforceable by the court.

It is important to note that mediation and conciliation processes are confidential and voluntary. Parties are not compelled to reach an agreement, and are bound not to disclose offers or settlement postures in court should the conciliation or mediation process fail. This promotes a candid discussion where parties are free to negotiate without concern that their settlement posture could later be used against them in a court process.

For parties who are unable to reach an agreement, arbitration may be an option. This is a private process where the parties agree that a third-party neutral (again, perhaps a retired judge or seasoned practitioner) will adjudicate the case, essentially replacing the judge, and issue binding decisions that later get incorporated into a court judgment. Arbitration can often be more expeditious than remaining in the court system and can sometimes be less expensive. Parties, however, should consider that an arbitrator’s award is much more difficult to appeal than a court judgment, given judicial deference to arbitrators, as enshrined in the common law and in statutory provisions in Massachusetts General Law, c. 251 s. 12.

All states in the United States except Massachusetts have adopted some form of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The UCCJEA was enacted in 1997 to replace the Uniform Child Custody Jurisdiction Act (UCCJA). Massachusetts still applies the UCCJA when determining jurisdiction over child custody matters. Legal concepts such as domicile, residence or nationality are not the determining factor when determining jurisdiction over a child custody case. In Massachusetts, Massachusetts General Law, c. 209B – Massachusetts Child Custody Jurisdiction Act, is applicable, which adopted the UCCJA.

Generally, for Massachusetts to have jurisdiction to hear a child custody case, the child’s “home state” must be Massachusetts. “Home state” is the state where the child lived with a parent or a person acting as a parent for at least six months immediately before the child custody action is filed. 

There are a few exceptions to the “home state” requirement where a Massachusetts court can consider exercising jurisdiction in a child custody case if the “home state” requirement is not met.

• Significant connection – if there is a significant connection between Massachusetts, the child and at least one parent, then Massachusetts may consider exercising jurisdiction. In this case, there must be substantial evidence in Massachusetts concerning the child’s circumstances and care. 
• Emergency – in an emergency where the child is physically in Massachusetts and the child has been abandoned or it is necessary in an emergency to protect the child from abuse or mistreatment.
• More appropriate forum – Massachusetts is a more appropriate forum. This situation can arise when no other state has home state status, significant connection or emergency jurisdiction, or when another state declines to exercise jurisdiction because Massachusetts is a more appropriate forum.

In a divorce, the Massachusetts Probate and Family Court will make determinations as to the children’s legal and physical custody. Legal custody relates to decisions regarding a child’s health, education, and religious upbringing, whereas physical custody is where the child lives day-to-day. If divorcing parties cannot agree on custodial arrangements, including a parenting plan for the children, either party can seek temporary orders from the court related to legal custody or physical custody pending a final adjudication. On a temporary orders basis in a divorce, but not a trial, there is generally a presumption of shared legal custody. Whether on a motion for temporary orders or at a trial, a court’s primary consideration for child custody determinations in a divorce is the best interests of the child(ren). In general, the court will seek to support and preserve each parent’s relationship with the child(ren) during and following a divorce. The court has significant discretion in making custody determinations.

The Massachusetts Probate and Family Court also has jurisdiction over child support orders. It is the responsibility of the divorcing parties, not the child, to seek a child support order. In general, the court issues child support orders pursuant to the Massachusetts Child Support Guidelines. The Child Support Guidelines calculate child support using a formula based on a combined income of the parties up to USD400,000 and takes into consideration factors such as the parenting plan of the parties, whether a child is over 18 years old, and the cost to each parent for health insurance and childcare. In instances where parties’ combined incomes exceed USD400,000, the Guidelines provide a presumptive minimum order, and additional child support on income over the combined USD400,000 is within the court’s discretion. A self-calculating worksheet is available to assist with the computation of child support pursuant to the Child Support Guidelines. Under certain circumstances, the parties may agree, or the court may order, an amount of child support that deviates from the Child Support Guidelines, but any amount of child support is subject to the court’s consideration of the children’s best interests.

Child support can be ordered for a child for as long as the child remains unemancipated. Emancipation for child support purposes is effectively determined by statute, Massachusetts General Law, c. 208, § 28. While there are circumstances that constitute emancipation before, it is possible that a child could remain eligible for a child support order until age 23.

In high-conflict child custody cases, there is often disagreement between parents on issues such as school choice, medical or therapeutic treatment, religious upbringing, and sharing of holidays. When divorcing parents who are joint legal custodians are unable to agree on these matters, the Massachusetts Probate and Family Court has jurisdiction to enter court orders addressing these issues after considering the child(ren)’s best interests. When parties are generally unable to agree to these important issues, judges will consider awarding one of the parties sole legal custody, thereby empowering one party to make these decisions on behalf of the child without the other party having any legal input. 

High-conflict child custody cases often require children to be more involved in the process and, depending upon the child’s age, the child’s input can be quite significant to the court when determining the child’s best interests. Generally, courts do not favour or look to children testifying in court. It is not technically prohibited but instead of a child testifying in court, a guardian ad litem will generally be appointed by the judge and that person will conduct an investigation (including child interviews and observations) and report back to the court in a comprehensive written report that the court can consider in determining the resolution of the issues at hand. 

In high-conflict child custody cases, there are often allegations and concerns of parental alienation or parental marginalisation. Courts are sensitive to these family dynamics and have the authority to order: (i) therapeutic interventions (ie, family therapy, supervised parenting time, individual therapy); (ii) changes in physical custody; and (iii) issue monetary sanctions for non-compliance with court orders.

Alternative Dispute Resolution mechanisms are resources that parties and attorneys often look to in order to help resolve disagreements in a divorce or a custodial case that involve children.

Many litigants look to mediation and conciliation before bringing a contested issue to court. In these forums, a third-party neutral trained in dispute resolution will mediate or conciliate the case. These neutrals are often retired probate and family court judges or attorneys with experience in the family law arena. Parties participate in these processes alone or with their attorneys, and can expect to spend anywhere between half-a-day to multiple days caucusing and negotiating in order to reach an agreement.

If an agreement is struck, the parties will often incorporate the terms into a full-fledged separation agreement that eventually is filed with the Probate and Family Court. After that, assuming the proper procedure is met, it becomes a judgment of divorce that is enforceable by the court.

It is important to note that mediation and conciliation processes are confidential and voluntary. Parties are not compelled to reach an agreement, and are bound not to disclose offers or settlement postures in court should the conciliation or mediation process fail. This promotes a candid discussion where parties are free to negotiate without concern that their settlement posture later be used against them in a court process.

Unlike financial questions, Massachusetts law generally does not favour the arbitration of child custody issues. Massachusetts law vests the family and probate court system with the responsibility to adjudicate the care and custody of the children by determining what is in their best interests. As such, judges will not blindly accept an arbitrator’s determination of custody matters. Parties instead may refer some of their ongoing disputes relating to the care and custody of a child to a parent co-ordinator – a third-party neutral trained and certified by the Commonwealth of Massachusetts to help resolve custodial issues. However, the scope of their authority is bound by Massachusetts law – specifically Probate and Family Court Standing Order 1-17.

In Massachusetts, child custody cases filed in the Probate and Family Court are part of the public record, and generally open to the public, including the press. Recordings of the hearing are also available by request. A particular judge may, in their discretion, decide to close the courtroom to the public and hold the hearing without anyone but the parties, their counsel, and court personnel present. Regardless, that does not mean that a recording of the hearing is not available to the public upon request.

Certain types of cases, however, are confidential and not open to public inspection. These include adoptions, cases involving child welfare, guardianship cases at the request of a child, abuse prevention cases involving a minor, and paternity cases where an alleged father is found not to be the father.

Pleadings in the Probate and Family Court are also considered part of the public record, and available either online or by requesting a case’s physical file at the registry in each courthouse.

Certain documents, however, are also confidential and will not be made available to anyone except the parties and their counsel of record. Personnel at the registry are expected to extract these documents before providing a member of the public with the file, and they are not available online. Besides financial records, records from the Department of Children and Families are also confidential. Reports from guardians ad litem have a heightened degree of confidentiality – the parties themselves are not permitted to have a copy, and may only read and review those reports at the courthouse or at their attorneys’ office, and may not make copies or disseminate their contents in any way.

Either or both parties may seek that a portion of the file, or the entire file itself, be impounded and, as such, be made unavailable to the public. Generally, these requests are rarely awarded. The judge weighs the countervailing interests – the party or parties’ right to privacy against the public interest in an open and transparent judicial system. In order to seek impoundment, a litigant must file a motion to impound along with a sworn affidavit that outlines what they seek to impound and the reasons therefore. It is then up to the discretion of the judge as to whether a file, or portions of it, should be impounded, and for how long, as there is typically a limitation on the length of time a file may remain impounded.