For most divorcing couples the legal process begins with filing what is called the complaint. This is a form (PDF) which sets out the basic information the Court and the other side need. In addition to the obvious, it asks where you last lived together as this tells the court whether or not you have filed in the right county and whether Massachusetts has jurisdiction.
It lists the children, asks if anyone has filed previously and also asks what are the grounds for divorce. Massachusetts is a "no fault" state, we call it "irretrievable breakdown." In practical terms this means that either a person can get a divorce without the assent of the other party and without having to prove the other party at fault. Which brings me to the fault grounds. We have a lot of choices; irretrievable breakdown (two kinds, with an agreement and without one) and fault grounds:
• Cruel and abusive treatment
• Utter desertion continued for one year
• Sentence of confinement in a penal institution
• Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium or other drugs
• Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance
I’ve been practicing 30 years and I’ve seen a lot of cases where adultery has occurred, this obviously has hurt the non cheating spouse BUT I’ve only used adultery as the grounds a few times, generally when the client had to declare those grounds in order to comply with certain religious requirements. The reason for this restraint is that Judges tend to frown on using the more dramatic grounds because the complaint is a public document, easily accessible and potentially in the future could be viewed by children, employers etc. As more and more counties get the dockets online this reason has become even more compelling. This doesn’t mean that you ignore bad behavior, conduct is one of the areas a Judge must consider if he or she is trying the case, it just means that you cover all types of bad behavior by filing for cruel and abusive treatment. Everyone knows that cheating on your spouse is cruel. Right?
After the complaint and the filing fee are sent to the court a restraining order on assets (next post) against the person filing (called the plaintiff) goes into effect then the court sends your attorney the summons which is delivered to your spouse (the defendant) in a formal fashion and the case truly begins.
The automatic restraining order on assets now applies to both parties and time frames start running; the defendant has 20 days to reply to the complaint; there is an automatic disclosure from both sides that must be made within 30 days, this means you need to exchange 3 years of bank records, tax returns etc. and if there are children both sides have 45 days to attend a court mandated parenting class.