Beginning the Court Process

As we said in the beginning, at Helman & Neustadt we feel strongly that a negotiated divorce settlement in which both you and your spouse decide what compromises to make is far preferable to a trial following which a judge who doesn't know you will make all of those decisions for you. But in every case, there comes a time when it's time to start the litigation process. It can be for one of a number of different reasons, and can take one of several forms. While nothing can take the place of the informed advice of your lawyer, we'll try to explain the options here.

  • Complaint for Separate Support:  This is also known as a legal separation. Perhaps you are not ready to get divorced; but you know that you and your spouse cannot continue living together. One option may be to file a Complaint for Separate Support. Such a complaint starts the process of obtaining a legal separation.  Here's what the court form looks like  (click on the form to enlarge it):

Helman & Neustadt Complaint for Separate Support

As you can see, the form requests the information necessary for a judge to determine whether you are eligible to seek the assistance of the Court by this means. For example, you cannot seek support by means of a Complaint for Separate Support if you are not currently married to the person from whom you are seeking support.  Once the judge determines that you are eligible for relief in a Separate Support action, s/he has the legal authority to order that your spouse provide financial support to you and any minor children you have together.  Or, the judge might order you to provide support to your spouse.  This may be in the nature of alimony (spousal support), child support or both.  In addition, the judge has the authority to make additional orders as s/he deems necessary to allow you and your spouse to live separately and securely. The judge's orders will depend on the specifics of your situation; and the decision is left almost entirely to his/her discretion.  A judge in this situation enjoys considerable latitude.

If you have minor children, the judge will also likely enter orders concerning a parenting schedule for you and your spouse and other orders necessary to protect your children during the process and see that they are properly provided for.  That may include allowing the children and the parent with whom they spend the most time to remain in the former marital home, at least temporarily. The goal is to minimize the disruption to the children.

If you later decide that you would like to be divorced, your lawyer can take care of converting your Complaint for Separate Support into a Complaint for Divorce. Although there is some work involved, it's certainly doable. Similarly, if you and your spouse reconcile and decide to live together again, it's easy for your lawyer to dismiss the Complaint for Separate Support; and its terms then no longer apply.

At Helman & Neustadt, we rarely recommend an action for Separate Support, and here's why. A legal separation, which is the result of an action for Separate Support, almost never lasts forever.  At some point, you and your spouse will either decide to reconcile and get back together or one of you, possibly both of you, will decide to divorce. So in these cases, we recommend filing a Complaint for Divorce. That way, it keeps the most options open for you and minimizes any future work to effect the end result you desire. If you and your spouse reconcile, dismissing a Complaint for Divorce requires the same paperwork as dismissing a Complaint for Separate Support. However, if you or spouse decide to divorce, the divorce action is already filed and requires no additional work to proceed.

  • Joint Petition for Divorce Pursuant to M.G.L. ch. 208, §1A:  This is the action you initiate if you and your spouse agree that your marriage is irretrievably over, and have already negotiated and reached an agreement on all of the issues. Your lawyers will have put together a written agreement embodying everything to which you have agreed, and addressing certain legal requirements, as well. You and your spouse will both will sign the agreement either in advance or in court on the day of your hearing. Here's what the form for a Joint Petition for Divorce looks like (click to enlarge):

As you can see, the form requests the information necessary for a judge to determine whether you are eligible to seek the assistance of the Court by this means. For example, you cannot seek support by means of a Complaint for Separate Support if you are not currently married to the person from whom you are seeking support.  Once the judge determines that you are eligible for relief in a Separate Support action, s/he has the legal authority to order that your spouse provide financial support to you and any minor children you have together.  Or, the judge might order you to provide support to your spouse.  This may be in the nature of alimony (spousal support), child support or both.  In addition, the judge has the authority to make additional orders as s/he deems necessary to allow you and your spouse to live separately and securely. The judge's orders will depend on the specifics of your situation; and the decision is left almost entirely to his/her discretion.  A judge in this situation enjoys considerable latitude.

If you have minor children, the judge will also likely enter orders concerning a parenting schedule for you and your spouse and other orders necessary to protect your children during the process and see that they are properly provided for.  That may include allowing the children and the parent with whom they spend the most time to remain in the former marital home, at least temporarily. The goal is to minimize the disruption to the children.

If you later decide that you would like to be divorced, your lawyer can take care of converting your Complaint for Separate Support into a Complaint for Divorce. Although there is some work involved, it's certainly doable. Similarly, if you and your spouse reconcile and decide to live together again, it's easy for your lawyer to dismiss the Complaint for Separate Support; and its terms then no longer apply.

At Helman & Neustadt, we rarely recommend an action for Separate Support, and here's why. A legal separation, which is the result of an action for Separate Support, almost never lasts forever.  At some point, you and your spouse will either decide to reconcile and get back together or one of you, possibly both of you, will decide to divorce. So in these cases, we recommend filing a Complaint for Divorce. That way, it keeps the most options open for you and minimizes any future work to effect the end result you desire. If you and your spouse reconcile, dismissing a Complaint for Divorce requires the same paperwork as dismissing a Complaint for Separate Support. However, if you or spouse decide to divorce, the divorce action is already filed and requires no additional work to proceed.

  • Joint Petition for Divorce Pursuant to M.G.L. ch. 208, §1A:  This is the action you initiate if you and your spouse agree that your marriage is irretrievably over, and have already negotiated and reached an agreement on all of the issues. Your lawyers will have put together a written agreement embodying everything to which you have agreed, and addressing certain legal requirements, as well. You and your spouse will both will sign the agreement either in advance or in court on the day of your hearing. Here's what the form for a Joint Petition for Divorce looks like (click to enlarge):

  • Complaint for Divorce Pursuant to M.G.L. ch. 208, §1B:  If you and your spouse are unable to agree, one option is to file a complaint for divorce pursuant to M.G.L. ch. 208, §1B. This says to the judge that you believe that your marriage is irretrievably over (a "no-fault" divorce), but that you and your spouse have been unable to agree. It's important to note here that even if your spouse does not agree that the marriage is over, s/he cannot force you to stay married. If you want to be divorced, you are entitled to it by law. However, you still will have to work out all the same issues involved in the dissolution of any family, -- how you will divide up what you have, whether one spouse will pay any type of support to the other and the terms of that support, and numerous child-related issues if you have children.

    This is the most commonly used type of complaint for divorce. It allows you to petition the Probate and Family Court to dissolve your marriage without assigning blame for its breakdown. Here's what this Complaint looks like (click the image to enlarge):
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Complaint for Divorce Pursuant to G.L. c

  • Complaint for Divorce Pursuant to M.G.L. ch. 208, §1:  This is the action you initiate if you and your spouse have not been able to reach an early agreement and you need the assistance of the Court. Here's what this Complaint for Divorce looks like (click the image to enlarge):

Complaint for Divorce - Temp.png
  1. ​A divorce under M.G.L. ch. 208, §1 must allege that the other spouse caused the breakdown of the marriage by one of the causes specified in the statute, -- "adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse."

  • Complaint to Establish Paternity:  Finally, this is the action you initiate if you have a child (or children) and were not married to the other parent at the time of birth. An action to establish paternity will allow the Court to set a parenting schedule, child support, decide who will provide health insurance for the child(ren), and any other issues regarding your child(ren). Here's what a Complaint to Establish Paternity looks like (click the image to enlarge):

Complaint for Paternity.png

We will help you through the negotiation process in a number of ways, perhaps most importantly by keeping you informed of what the law permits, and what it requires. And since we've worked with the judges over time, we can often help you understand how a particular judge views a particular issue. Knowing what may happen in court can be invaluable during negotiations because that knowledge will help guide you regarding your negotiating position. If your spouse is being unreasonable in his/her demands, we'll tell you. Similarly, if you want things from the negotiation that you are unlikely to achieve in court, we'll tell you that, too. The better informed you are, the more successful you will be.