Common Questions & Helpful Articles
If you are looking to find out more about specific areas of law and legal processes, here are some answers to common questions and useful articles. We love serving clients who want to educate themselves about their cases. Above all we want you to gain a more comprehensive understanding of your legal matter. Just don’t be overwhelmed – we’re happy to talk you through any of this.
If you have further questions please don’t hesitate to give us a call on 413.774.7085 or leave a message on our Contact form.
Q: Why do I need an Attorney?
Can I just fill out the forms the court gives me and tell the judge what is happening?
Divorce and the other issues we help you with – guardianships, adoptions, custody issues – are life-altering events.
The actions you take will have life-long impacts. It is best to get an attorney’s advice. Even a court form, if filled out incorrectly, can have dire consequences. If a matter is simple, we can provide you limited assistance representation, so that you have the benefit of an attorney’s advice with the least cost.
Q: How long will my divorce take?
While there is no “typical” divorce, an uncomplicated can take between 6-8 months. Courts have “time standards” that are used to gauge whether a case is being handled efficiently. Modification cases are on an “eight-month” track. Divorces are on a “14-month track.” This does not mean, however, that your case must be completed by that date. In the relatively few cases that go to trial, the process can last as long as two years.
- How long your case takes to complete depends on many factors:
- The complexity of debts and assets
- Whether appraisals are needed to value assets
- Amount of conflict between you and the other sideDifficult child custody matters that require the assistance of an investigator or clinical evaluator (“guardian ad litem”)
- Personalities of everyone involved.
As you can see, several factors are beyond our control. As your attorney, it is our job to evaluate these factors to let you know how they will impact your case, your options, and the best advice on how to proceed.
Q: How much will my divorce cost?
It depends. The cost can vary anywhere between $5,000 to much more. Complexity of debt and assets, and the level of conflict, as well as the personality and negotiation styles of the players, all play a role. If possible, we will suggest a budget and ways that you can remain within a budget.
As a general rule we will ask you for a retainer prior to working for you, and bill against the retainer. (For more on retainers, read the article, Fuel for your Case: Retainers and Time Billing.)
Q: I want to discuss divorce with my spouse, but s/he keeps diverting the conversation, and I lose my nerve. What should I do?
Well, actually, we’d suggest you make an appointment with a couple’s counselor, and plan to break the news there. The counselor can help you say what you want to say, while providing emotional support for your spouse. If your spouse has been in denial, tell them that you’ve consulted with an attorney to learn about the divorce process, and this meeting is a step in that process. That will help bring the message home.
Q: I’ve had an affair. Should I tell my spouse?
If you’ve had an affair, now is not the time to unburden yourself to your spouse. While Massachusetts is a “no-fault” divorce state, your spouse will be inflamed, and it will be more difficult to negotiate with him or her.
Keep your new boy/girlfriend way in the background and far from your family now. Your spouse may try to use your infidelity as grounds to argue that you should have less time with the children or support. A lawyer can help you figure out when and how to tell your spouse.
Q: What should I do before I leave my spouse?
First, decide whether you really want a divorce. Have you discussed your decision with a number of people, including a therapist? There may be other reasons for your unhappiness apart from your spouse. Think hard before you go. Building intimate relationships is hard work. Yours may just need an intervention, rather than a termination.
Second, talk to a lawyer before you start separating. Massachusetts law is very broad when it comes to the division of marital property. A lawyer will help you create post-divorce scenarios that will predict what you’ll have to live on. Use this to create a budget so you’ll have a realistic idea of where and how you will live.
Gather information about what you and your spouse earn, own, and owe. Make copies of documents showing that information. You will need these items:
- Pay stubs
- Tax returns (state and federal) for the past three years, if possible.
- Bank statements from all accounts. Massachusetts has a standard rule requiring that each spouse produce three years’ worth of bank statements and tax returns. Go to your bank’s website and download as many months’ worth of bank statements that you can.
- Retirement account statements
- Titles to cars, boats, RVs
- Mortgage statements
- Credit card statements
- Information regarding your health insurance
- Recent home appraisals, applications for mortgages, credit cards.
Keep this information in a safe place where your spouse can’t get it. Take this information to a lawyer to discuss how to safeguard your property and credit during the divorce. If you have joint credit cards, freeze or close those accounts.
Change account passwords to your individual on-line bank and social media accounts, to maintain your privacy. Don’t change passwords to joint accounts. If you’re concerned about your spouse accessing information in a joint account, create a new account in your own name.
Finally, regarding the children: If you can do so safely, work on a joint parenting plan before you leave. Consider using a mediator or therapist to help you. As “user friendly” as our courts are, here in Western Massachusetts, the judge does not want to decide your parenting plan. Why should you give control over the most important relationships in your life to a judge who hardly knows you? A client who can work with their spouse to come up with a plan creates a positive foundation for the rest of the divorce.
Q: My spouse just left me. What should I do? Can I access his/her on-line accounts?
First, get emotional support to help you through this. You will be grieving and need help thinking rationally.
Second, survey the damage. Has s/he taken money or property? Make a list, gather your information (see above) and see a lawyer so you know your rights and can help predict your future.
If your spouse has left their device(s) (e.g., smart phone, iPad, computer) in plain view, and not password protected, it’s not illegal to view their contents. However, this is a complex area of the law. Messing around with your spouse’s accounts, deleting information or spying on them could be illegal, and you could end up being punished by the judge for your actions.
Q: I’m afraid s/he’s going to lash out. What should I do to protect myself?
Talk to a counselor to formulate a safe exit strategy. Identify people who can help you with temporary lodging and make them part of your strategy. Contact Safe Passage or the New England Learning Center for Women In Transition (NELCWIT). If he or she has already threatened you with violence, has it put you or your children in reasonable fear of imminent physical harm? If so, you should consider applying for an abuse prevention order. [link needed here].
Q: What if I don’t want a divorce?
Generally speaking in Massachusetts, you can’t stop your spouse from getting a divorce. Massachusetts is a “no-fault” divorce state, meaning that anyone can end a marriage, without reason.
Even if only one spouse believes the marriage isn’t working, s/he can say it is “irretrievably broken down” and can’t be fixed, and that is enough to get a divorce. If your spouse files a divorce complaint and you are served with a summons and complaint, you should seek legal advice to put yourself in the best position possible in the ensuing negotiations and/or court proceedings.
Q: I need money to live on. Can I take it from our joint account?
Generally speaking, you may do so. However, if you have received a divorce summons, special rules apply. An “automatic restraining order” barring each spouse from spending money, incurring large debt, or selling assets, comes into play. You can read the rules on mass.gov.
If a divorce case has been started, you will need alternative sources of funds unless you and your spouse can decide how to share accounts and decide upon child support.
Q: My spouse says I’ve traumatized the children and can’t see them. Can they keep me away from them while we’re working on the divorce?
Criminal lawyers say they represent bad people on their best behavior.
Family lawyers encounter good people on their worst behavior. Unfortunately, making false accusations is a common divorce behavior. Your spouse is thinking irrationally and may be projecting his or her own fears onto the children.
If your spouse is lying and erecting barriers between you and your children, it’s best to take swift action. False narratives can gain traction and create a poisonous atmosphere, harming the children. Seek therapeutic help as soon as possible. A therapist or couple’s counselor can help defuse the situation. If that doesn’t work, you may want to hire an attorney to file a motion for temporary order to make sure you have access to your children.
Q: I want to move out, but will that keep me from getting the house?
It’s a modern myth that you must “stay put” if your goal is to keep the family home. There’s some truth to this—if it’s clear that you will remain the primary caretaker of the children and they are staying put, you probably should not, generally speaking, move out.
However, during the divorce process your finances will become clearer and it may make sense for you to move. You may need to move out temporarily, for your mental health. Having a written agreement before you move out is a wise idea.
Q: My spouse just cleaned out our bank accounts. What can I do?
Assess the damage. Print out account statements showing when and how and how much money was taken. Then see an attorney to plan and consider your next actions.
Going to Court?
Q: I’ve been served with a summons and complaint. What do I do?
1. Do you agree on any issue in the divorce? The Court likes to know what issues are “uncontested” to minimize court time and conflict. If you and your spouse agree on something – who supplies health insurance, for example —then that issues goes on the “uncontested” list. However, if you are uncertain, it’s best put the issue in the contested column.
2. What kind of “discovery” will you need? “Discovery” in a court case means the exchange of information between the two sides aimed at getting at the facts and proof of the case. For example, if the value of your house is an issue, you’ll want copies of old appraisals, as well as a recent appraisal. If you think your spouse is sending money to her sister-in-law, you’ll want copies of bank records and e-mails showing money transfers.
The case management order sets deadlines for completion of discovery. If you know you want to get the house re-appraised, give yourself enough time to arrange to have an appraiser come out. If you want your spouse to give you financial records, you have to give them at least thirty days notice—more, if you are sending your request by mail. Discovery has its own set of rules which can be complex. It’s best to consult an attorney to see what you need and how you can get it, without being accused of harassing your ex. At Esser Kent, we can prepare customized discovery packages so you can get the facts you need for your case.
3. Do you agree to try Alternative Dispute Resolution (ADR)? Trying ADR is voluntary in Massachusetts. The standard Case Management Conference (CMC) form allows you to choose from three options: you will try ADR by X date; you will consider ADR in the future; or you will not consider ADR. The CMC sets a blue print for your case. It’s important to get it right.
Q: How do I dress? How can I prepare myself?
Dress as you would for an office job—neat clothing, no jeans. For men, a sports jacket is nice, but not necessary. Be well groomed and do not wear excessive fragrance.
Get prepared for your day in court by understanding why you are going and what the judge will consider that day. Read, and re-read, the court papers. Rehearse a lot. Stay on topic. For example, if you are going to court to get child support adjusted, don’t bring up the fact that your spouse is refusing to buy you out of the family home – unless there’s a clear connection and/or the Judge asks you a question.
Listen to the judge’s questions carefully. If you don’t understand something, ask for an explanation. Always, always be respectful.
Be realistic and work within time constraints. Most court appearances, other than trials, last up to 15 minutes at most. Yours may be one of 20-30 cases the Judge is hearing that morning. This is why it is most important to state your position and the facts supporting it concisely.
Q: How do I find out the status of my court case?
The Massachusetts court system has an on-line docket system which shows scheduled court events. You can also go to the courthouse and request to see your file.
Q: What’s a “pretrial conference?” How do I prepare for it?
We like to call the Pre-Trial Conference (PTC) the “put up or shut up” date. (Hey, what can I say? I like to tell it how it is!).
Since many cases settle on or before the PTC date, there are rules procedures you must follow to encourage settlement. You’ll be required to attend a mandatory “four-way” meeting with your attorney and your spouse’s attorney. If you’re unrepresented, you still must meet, unless there is an active abuse prevention order keeping you apart. If you don’t meet before the PTC, your PTC date may be rescheduled until you fulfill the meeting requirement.
At the Court wants to know:
- What issues you agree upon;
- What issues could be settled easily, perhaps with help from a mediator;
- What issues need to be put before the Judge for resolution—to be “tried” at a trial.
If there are issues to be tried, the court wants to know (a) what is your proof—what evidence will you use to prove your case; (b) who are your witnesses; and (c) how long will it take to try the case.
Knowing this information, the court will set a trial date for you. Most trial dates get scheduled at least 3 months ahead.
The Judge will want to hear from each side what proof they’ll present at trial. Some Judges may give you an opinion, directly or indirectly, of whether you’d win a particular issue at trial. It is extremely important to listen to the judge’s view of your case at the PTC.
Q: What goes into a Pretrial Conference Memorandum? Do I have to do one if my case is settling?
You must prepare a “pretrial conference memorandum,” a document detailing all of the information that should be presented at the Pre-Trial Conference (PTC). The memorandum is the “action plan” for the trial. If you forget to list an issue or a witness on the PTC memo, you may be barred from presenting the issue/witness at trial.
If you believe your case is settling, bring a draft settlement agreement to the hearing. You can review the settlement proposal with a probation officer prior to going into court. Even if you don’t settle all of the points of your case, you may want to try to get a final judgment on some of them.
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