Getting divorced 101

Welcome to our first Q&A!  This week’s blog is going to answer some very basic questions about the different avenues a person can take in the state of Massachusetts when moving through the divorce process.   Let’s dive right in!

Q: What is mediation and what does it mean for me?

A:  Mediation is a process by which two parties hire a neutral third party to help facilitate a productive discussion with the end goal of reaching an agreeable settlement.  It’s important to keep in mind, though, that a mediator is not there to represent either party or to provide you with any type of legal advice.  A mediator’s job is to help guide you through a difficult conversation, manage the tension between parties, or sometimes offer creative solutions to a problem that will help both parties obtain their main objectives.

Remember, mediators are not there to protect your legal rights. You can still hire an attorney to participate in the mediation or to be on the sidelines to prepare you and answer any questions you may have. Some people are afraid that having an attorney during this process means that you want to drag this out and potentially go to court, but that’s not the case at all.    A mediator is a great way to help you and your ex work through some of the important issues that need to be worked through in a divorce or custody dispute, but having a lawyer on the side is a great way to ensure that your rights are being protected during the mediation.

Q: If I want to keep my costs low, that means I want to go to a mediator, right?

A: While mediation is usually a cost-effective choice as it means both people are choosing to try to work together, it doesn’t guarantee that your costs will be low.  We have seen mediations where a couple spends 15 – 20 hours in an attempt to reach a settlement only to find they are stuck on one issue and then have to file in court to have that one issue heard.  Although this generally means that everything else is in agreement, we’ve also seen many people revoke their prior offers if the case goes to court and they do not get what they want.  For people in those types of situations, it isn’t always most cost-effective.  While no lawyer can guarantee you how much it will cost to complete your divorce, the final amount spent is going to depend on one thing and one thing only – how easily you and your spouse work together to resolve your differences and come to an agreement on all the issues relating to the divorce.  Sometimes getting some input from the judge helps the case resolve much quicker in the long-run.  Also, just because mediation is often most cost-effective, that doesn’t mean it is the best choice for everyone.

Q: What do you mean mediation isn’t for everyone?

A: There are a lot of factors that can affect how useful or productive a mediation is.  One of the most prominent examples we can give of a situation that would not be suitable for mediation would be in cases where one partner is abused by the other, either verbally of physically.  When one partner is an abuser, they will often create an environment in which they control and intimidate the partner that is being abused.  A good mediator will not even accept or continue with a mediation once they discover this type of power dynamic.  Another prominent example is where you do not believe the other person is being honest.  It is essential that you trust that the other person is disclosing everything they are supposed to.  Without a case being filed in court, you cannot subpoena your ex’s records if you do not believe he or she is being truthful. In cases like these, it is recommended that mediation be avoided and other avenues be explored.

Q: Does O’Connor Family Law do mediations?

A: Yes!  We have a certified mediator on staff who would be more than happy to help broker an agreement between you and your spouse if your case is one we believe would be appropriate for mediation.

Q: So, if I’m thinking of getting a divorce, what types of divorce are there in Massachusetts??

A: In Massachusetts, there are two types of divorce: No-Fault Divorce and Fault Divorce.

Q: What’s the difference?

A: A no-fault divorces is filed when a “irretrievable breakdown” of the marriage occurs.  For example, both parties simply no longer love each other and wish to part ways.  At Fault Divorce is when one party is accused of something that would have caused the breakdown of the marriage. For example, At-Fault Divorces are sometimes filed in cases of adultery, desertion, gross and confirmed habits of intoxication, etc. However, the majority of fault-divorces are usually changed to a no-fault as a fault basis generally requires a trial.

No Fault Divorces also have subcategories – a 1A Uncontested Divorce or a 1B Contested divorce.  Uncontested divorces can be filed when both parties are 100% in agreement on the terms of separation and have decided to move forward with the divorce.  If even one item is contested or one party refuses to agree to a divorce, then a 1B divorce must be filed.  However, around 80% of cases that are initially filed as a 1B Contested Divorce end up settling rather than going to trial!

Q: What about annulment?

A: Annulment in Massachusetts is only applicable in very limited circumstances.  The party (or parties) asking for annulment need to prove that their marriage is voidable.  Marriages are automatically void if one spouse was already married and the other didn’t know or you have married someone who is a close relative or a close relative through marriage (IE a step brother or step sister).  Marriages have the potential to be voided if one of the spouses didn’t have the mental capacity to consent to be married (no drunk weddings in Vegas), one of the spouses is not physically capable of sexual intercourse, one spouse is not old enough to get married, or fraud was committed in the act of obtaining the marriage. Being able to annul your marriage is very, very rare though!

Q: Sounds straightforward, do I need an attorney for an annulment?

A: Yes.  Annulment cases are more complex than they initially appear.  A lot of paperwork needs to be filed and must specifically set forth the conditions as to why the marriage was never valid to begin with.  Further, in Massachusetts, one spouse can contest the annulment and ask that the court affirm the marriage which complicates the issue even further.

Q: So how do I decide which option is best for me?

A:  As every situation is as different as the people involved in it and there is no one “right way” to go about things. One of the best ways to figure it out what is best for you is to call our firm and tell us about your unique backstory – the “how’s” and the “why’s” of what brought you to where you are today.  We will review everything you tell us and help you pick out the best course of action to start moving you down the path towards the next chapter of your life.  All it takes is 15 minutes to go over your story with our client specialist and we will keep it completely confidential.  We can be reached at 774-314-4725 from 9 AM to 5 PM, Monday through Friday.

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