When a marriage becomes irretrievably broken, both spouses generally agree that a divorce is necessary. However, some divorces are contested by one party, which may make the process more difficult and lead to prolonged negotiations and delay the ultimate resolution. What can make things even more difficult is when one spouse refuses to even respond or engage in the divorce process.
When a spouse is dilatory or refuses to participate in the divorce process, here are some helpful tips:
The first hurdle in any divorce process is actually getting the process started. Once a Complaint for Divorce is filed, the Summons and a copy of the Complaint for Divorce needs to be served upon the other party. This is typically done by having a Constable or Sheriff deliver the Summons and Complaint for Divorce to the other spouse. Once the Summons and Complaint for Divorce are served on the other spouse, the Original Summons, along with a Certificate of Service signed by the person who hand-delivered the Complaint, is returned to the Court for filing. After the Summons is filed with the Court, the case is ready to proceed and the Court will likely issue a notice of … Keep reading
One of the biggest concerns parties have when going through a divorce is that their spouse will dissipate, hide, or move assets without their knowledge and consent. The fear is that once assets are gone, they can no longer be divided in the divorce. While the dissipation, hiding, or moving of assets is unfortunately not uncommon during a divorce, there are three main protections available to protect assets during a divorce: (1) Rule 411 Automatic Restraining Order; (2) Trustee Process; and (3) ultimate property division. A summary of each of these protections is as follows:
- Rule 411 Automatic Restraining Order
In addition to prohibiting a divorcing party from incurring debt which would burden the credit of the other party and from changing the beneficiary of any insurance policy or retirement plan, the Supplemental Probate and Family Court Rule 411: Automatic Restraining Order prevents both spouses from taking actions which would affect marital property without the other spouse’s consent. It provides that neither party to a divorce “shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party.”
The Rule 411 Automatic Restraining Order becomes effective … Keep reading
As I mentioned in my last blog post outlining a few tips for videoconferencing, a discussion of the decision-making process as to whether to participate in mediation or conciliation via videoconference could be its own blog post. So, here it is!
On July 13, 2020, Massachusetts state courthouses physically reopened to the public for limited purposes, including some in-person proceedings. However, most hearings continue to be conducted by telephone or videoconference, often scheduled half an hour apart from other cases. The result of the Court’s closure in mid-March due to COVID-19 and only gradual reopening since then is that the Court system is struggling to play catch up on matters that were not able to be heard during the Court closure, plus keep up with the continual new filings. Parties are facing significant delays in getting their “day in court,” which is requiring parties and their counsel to think outside of the box and come up with creative solutions to address the ongoing needs of divorcing parties and their families. One of these solutions may be to participate in mediation or conciliation via video conference. While there is a difference between these two forms of alternative dispute resolution, for … Keep reading
While you are finally able to get your hair cut at a salon or barbershop, a bite to eat and drink at an outdoor restaurant, and even a pedicure (thank goodness!), the days of appearing in Court for a hearing, or in an office setting with a large group of people for a deposition or mediation, are likely a long way off. Even though social distancing requirements are being lifted, and even with the Supreme Judicial Court’s updated order of June 24, 2020, indicates that Massachusetts state courthouses will physically reopen to the public for limited purposes, including some in-person proceedings, on July 13, 2020, virtual court appearances, depositions, and other meetings are here to stay.
In order to keep divorce cases moving during COVID-19, many divorce lawyers and the Courts have transitioned away from in-person meetings entirely (except in cases where an in-person meeting is absolutely necessary) and towards videoconferencing. The Judges of the Probate and Family Court in Massachusetts have now all been granted “Zoom” accounts to conduct hearings (motions, pretrial conferences, and even trials) via videoconference. Mediators and conciliators are offering videoconferencing sessions, with the ability to conduct “break out” rooms for privileged settlement discussions between … Keep reading
Another week of social distancing, an extended stay-at-home advisory, and a new update on the status of operations of the Probate and Family Court due to COVID-19. While continued social distancing measures were certainly expected to continue in Massachusetts in some form past May 4, 2020, it was not easy to digest that this new “normal” would remain in place for at least the next month (particularly for this working mother of two young children who no longer has the assistance of outside childcare after Governor Baker announced last week that daycares would be closed until at least June 29, 2020).
On April 27, 2020, the Supreme Judicial Court issued an updated Order guiding Court Operations under COVID-19, which becomes effective May 4, 2020. The new Order extends the closure of the Probate and Family Courts from May 4, 2020, until at least June 1, 2020, except in the case of an emergency. A copy of the new order can be found here.
What does this new “normal” look like for divorce or custody matters presently pending or to be filed in the Probate and Family Court? Here are a few of the most relevant take-aways:
- Until at
… Keep reading
All too often divorce cases involving children end up being hotly contested, with a “win” or “lose” mentality. Inevitably, this mentality results in neither parent winning and the children more often than not losing. While an asset division or support dispute can easily be assessed on a cost-benefit analysis (there is X is in dispute and you will spend Y in attorneys’ fees fighting it), when it comes to child-related issues, there is no price you can put on your child’s best interest. This often results in both parents spending a significant amount of time and money “fighting” to get custody of the children, which invariably causes a polarizing effect on their ability to co-parent the children going forward.
Rather than focus on who is going to “win” custody of the children, both parents should focus on what is truly in their child or children’s best interests, not their own. What works for other families may not work for their family. Both parents should be acutely aware of the individual needs of their child or children and work towards addressing those needs upon separation and divorce.
While it may not work in each case, and while it is certainly … Keep reading