Family law includes many different aspects and involves both legal and emotional concerns. It can seem overwhelming to a family facing divorce—and the subsequent division of property, assets, child custody, child support, parenting plan, and alimony.
In the heat of this turmoil, emotions run high and sometimes tempers flare. But as difficult as it may be, families must take a rational, objective approach in order to make the right decisions.
In a divorce there is often anger and a “winner take all” attitude in an effort to “punish” the other side by taking all the money as well as the children. But sometimes there is a guilty party or a party still in love despite the situation who will want to give too much to the other side and sacrifice their “fair share.” The needs of both parties must be analyzed by a qualified legal professional in order to come to a rational settlement.
Let’s explore some of the options in this blog I’ll call “Divorce 101.”
The Divorce
Can the divorce be settled out of court with an amicable agreement on both sides? Will it be contested or uncontested, “fault” or “no-fault”?
“Contested” means that one person disagrees with the divorce or its terms. “Uncontested” means that both sides agree about everything that is filed. In Massachusetts, a divorce can be filed as “no-fault” or “fault,” and either of these can be contested or uncontested.
A “no-fault” divorce is a divorce where a marriage is damaged beyond repair but neither party blames the other. In Massachusetts, the no-fault divorce grounds are called “Irretrievable Breakdown of Marriage.” Most divorces fall into this category.
But even with a no-fault divorce there are two types:
• 1A Divorce (uncontested no-fault divorce) is when both parties agree the marriage is irretrievably damaged and they reach a written agreement regarding child support, parenting time, alimony, child custody, and division of assets.
• 1B Divorce (contested no-fault divorce) is when one party believes there is an irretrievable breakdown of the marriage but they are not in agreement about custody, support, or marital property issues.
In a “fault divorce,” the person asking for the divorce must prove specific ground(s) or reason(s) for the divorce. These are:
• Adultery
• Desertion
• Gross and confirmed habits of intoxication
• Cruel and abusive treatment
• Non-support
• Impotency
• A prison sentence of 5 or more years
The fault divorce can be more time-consuming and expensive than a no-fault divorce.
Division of Property and Assets
In a divorce, the courts will distribute property and assets according to which state you live in, be it either community property (50/50 split of all property, assets, and debt acquired during the marriage) or equitable distribution (fair, but not necessarily a 50/50 split). Massachusetts is an equitable distribution state, as is most of the U.S. Only nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Child Custody
Of course, both parents love their children, but who will be the custodial parent? Issues like work schedules for one or both parents, how a non-working parent will survive financially, and even past abuses will come into play.
Child Custody is concerned with parental rights and obligations with regard to the care of the children involved.
There are basically five types of child custody:
- Legal Custody—where a parent has legal custody and can make legal decisions on matters affecting the child.
- Physical Custody—where children live with the parent who has physical custody.
- Sole Custody—where one parent has both physical and legal custody of the child. (It is important to mention that the other parent may have visitation rights, but does not have any custodial rights, and cannot make decisions affecting the child.)
- Joint Legal Custody—where both parents have a say in decisions that affect the child. (But if a major dispute occurs between these parents, the courts can settle the argument.)
- Joint Physical Custody—where parents share joint physical custody and children divide time living with both parents.
Child Support and Alimony
As most people know, alimony is paid for the benefit of a spouse and child support is paid for the benefit of any children resulting from the marriage in order to meet the children’s basic needs (food, clothing, medical, housing, etc.).
Alimony is an amount paid from one spouse to another following a divorce. It is intended to aid the spouse on the receiving end in maintaining a lifestyle similar to when they were married. A judge can order alimony for a specific time period or until the spouse receiving it remarries.
Considerations regarding the amount of alimony paid are: spousal income, employment, individual living expenses, how property and assets were divided in the divorce, length of the marriage, and spouses’ ages.
Child support amounts depend on the decided custody agreement and the state law, and can be court-ordered. Sometimes support may not be ordered, if both parents have similar incomes and equal custody. Other considerations are the number of children in the household and the non-custodial parent’s income.
Child support may be ordered until the child turns 18 or even longer, e.g., if the child goes to college and needs financial assistance. The order regarding length of child support is dependent upon state law and parents’ financial situation.
Peripheral Issues
Other issues to be considered in a divorce are taxes, retirement plans, joint real estate and business matters, even a restraining order if there was domestic abuse in the marriage.
A divorce situation is complex and each case is different. This blog is just an introduction to what is involved and I hope that it’s been helpful. But if you find yourself headed toward such a situation, don’t delay in getting good, solid legal advice.
Why Choose Attorney William Gillespie?
Attorney William Gillespie has extensive expertise and experience in Family Law/Divorce. He can advise you on divorce, division of property and assets, child custody and support, alimony, and other relevant issues. He has been in practice since 1996 and has a proven track record of results representing clients throughout Massachusetts.
An active member of the Plymouth County Bar Association, Attorney Gillespie earned a BSBA degree from Stonehill College and his Law degree from Southern New England School of Law. He also volunteers his time at the Brockton Division of the Probate and Family Court as a Family Court and Probate Attorney.
In addition to Family Law/Divorce, William Gillespie practices law in these areas: Personal Injury, Criminal Law/DUI, Immigration Law, Probate and Estates, Civil Litigation, and Real Estate Law.
We’d be happy to answer any questions you may have and offer you a FREE CONSULTATION. Call (781) 344-6998; email wgillespielaw.com; or visit our website www.wgillespielaw.com.
Interpreters are available for the following languages: Cape Verdean, Haitian, Portuguese, and Spanish.
The foregoing should not be construed as legal advice.