Learn the differences between uncontested vs contested divorce in Massachusetts and what the issues are for each.
You’ve made the decision to end your marriage. Let’s pause to acknowledge this incredibly courageous step of choosing a better future for yourself (way to go!) Now you’re probably asking yourself— what are my next steps? You should consult with an attorney to discuss your unique circumstances, but this article will act as a high-level overview of the divorce process in Massachusetts and the differences between an uncontested vs contested divorce in Massachusetts.
First, you need to determine where to file your divorce action. A party is eligible to file for divorce in Massachusetts if s/he has lived in Massachusetts for at least one year, or if the filing party lives in Massachusetts and the reason for the breakdown of the marriage occurred in Massachusetts. If either of the spouses live in the county where the parties previously lived together, then the divorce needs to be filed in that county. However, if neither party now lives there, then the filing party can file in the county in which s/he now resides.
Next, you need to decide what type of divorce you are going to file. There are two ways to file for divorce in Massachusetts: Uncontested (known as a 1A divorce after the statute) and Contested (known as a 1B divorce). Like most things in life, there are pros and cons to filing each type of divorce, but the major difference between the two types of divorce is the timing of when you file.
An uncontested divorce cannot be filed until there is a full agreement on ALL issues in the case including alimony, equitable distribution of the marital estate (dividing up both assets and liabilities), health insurance, and, if the parties have children, custody, parenting time, and all over provisions pertaining to your kids. If there is a disagreement over any of these terms, then you cannot file an uncontested divorce, as this type of divorce requires an executed Separation Agreement from the parties at the time of filing. Some benefits of filing uncontested are that it usually ends up being a faster and less expensive process for the parties because only one court appearance is required. Since the parties came to a full agreement prior to filing the divorce, no litigation is required and uncontested divorces are typically more amicable.
On the other hand, if the parties don’t yet have a full agreement on all issues, one spouse must file a contested divorce. This does not mean that the parties can’t settle the case later down the line, and the majority of divorces resolve by agreement so “contested” is a bit of a misnomer. Contested divorces do usually take longer to resolve and are generally more expensive than uncontested divorces. Another important consideration is that when a contested divorce is filed, certain automatic restraining orders go into effect to restrict one spouse from draining bank accounts, kicking the other spouse off of health insurance, etc., so there are more protections in filing a contested divorce than an uncontested divorce. Additionally, parties in a contested divorce action can file motions and receive temporary orders from the court, which are not available to parties who file an uncontested divorce.
One final note, 1A and 1B divorces are “no-fault” divorces. One party simply has to believe that the marriage has irretrievably broken down in order for the court to grant a divorce (basically, one party doesn’t want to be married anymore). Parties in Massachusetts also have the option of filing for divorce on fault-based grounds of adultery, desertion, gross and confirmed habits of intoxication, cruel and abusive treatment, non-support, impotency, or a prison sentence of 5 or more years. In these cases, one party must prove one of these grounds by providing sufficient evidence to the court which typically requires a trial or extensive evidentiary hearing. Most divorce attorneys advise against filing a fault-based divorce because, according to the mass.gov website, “The fault divorce process can take longer and be more expensive than a no-fault divorce.”
Hopefully, this gives you a bit of an understanding around an uncontested vs contested divorce in Massachusetts and may help you decide how to proceed. For more information and expert legal support, contact Attorney Jolee Vacchi today!