The discovery process is almost universally agreed to be the most important step in the divorce process.  Discovery is where and how you build your case and find the evidence necessary to support your theory — and often develop your theory — of the case.

What Does Discovery Mean in Divorce?

Discovery is one big step that encompasses many small steps.  First, it is important to note that in Massachusetts, discovery begins the minute the complaint is served because we have something called mandatory discovery.  It doesn’t matter if you are the one to serve the complaint for divorce first or if you have been served — either way the clock starts ticking on the mandatory disclosure.

Generally speaking, discovery begins in earnest after the temporary order hearing though it is possible to start making discovery requests the minute the complaint for divorce has been served.  Discovery is really a series of choices for the attorney and the client.  For instance, the client and attorney must decide whether interrogatories or a deposition are needed.  Perhaps both might be necessary.  If one or both of the parties own a small business then a business valuation must be done in order to fully understand the real value of the business.  Subpoenas will likely need to be issued to obtain documents that are not mandatorily disclosed.  Again, all of these are choices and small steps in the larger process of discovery.

Ultimately the point of the discovery process in divorce is to find answers and help the client and attorney determine their approach to the division of the marital estate.  Discovery helps clarify such things as income of the parties, the true value of the assets of the parties, and the full scope of the liabilities.  Remember, not all cases will require a significant amount of discovery.  The more simple the marriage and marital estate, the less there is a need for discovery.  However, if your marriage encompasses many years and a significant amount of assets, be prepared for a longer discovery phase.

Make sure to check out the parts of the series Divorce 101:

First Step: Choosing a Divorce Attorney

Filing for Divorce in Massachusetts

Temporary Orders in Divorce

Now that you have picked your divorce attorney and begun the divorce process by filing for divorce the next step is temporary orders.  While most attorneys regard the temporary orders as standard or routine it is important to not lose sight of the importance of temporary orders.  Temporary orders are the “rules of road” and govern the relationship of the parties regarding such things as child support, child custody, and alimony (spousal support).  Temporary orders create the status quo and set precedent for future issues.

What is a Temporary Order?

A temporary order is an order entered by the court after a hearing on a Motion for Temporary Orders.  The order is called a temporary order because it remains in place only temporarily as it “expires” when the parties either complete a separation agreement or when a final order is made as the result of a trial.

The Motion for Temporary Orders contains very specific requests.  A few standard requests:

• Sale of the marital home
• A specific amount for child support, usually based on the child support guidelines
• A parenting schedule (often referred to as visitation)
• An agreement regarding legal custody
• Health Insurance
• Uninsured medical expenses

The specific requests made by the attorney will vary from case-to-case as each individuals situation has specific facts that will require some things that another case might not.  I always make sure to remind my clients that even if the parties come to an agreement while at court, that agreement becomes an order of the court which means that failure to comply with the order will result in a contempt of court.  Also, because it is an order of the court, you may seek a modification of the temporary order.

What Can I Expect At My Temporary Order Hearing?

The first bit of advice I give my clients is that most of court is “hurry up and wait.”  For the clients, much of the day is spent waiting.  I also tell my clients not to expect to get before a judge right away.  Most courts will “triage” temporary order hearings by sending them to probation (sometimes called family services).  The purpose of probation to get the two sides to agree on as much as possible, if not everything.  This saves the judge a considerable amount of time.

For those issues that are not resolved in probation (family services) then the parties see the judge and where each side presents his or her argument.  Rarely does a judge make a complete temporary order from the bench.  If an issue is time sensitive, he or she may make an order regarding that issue but generally the whole temporary order is made within a week of the hearing.  The order will include any agreements the parties have made prior to seeing the judge.  If the parties come to a complete agreement while in probation then the judge’s role is to review that agreement.  If the agreement is satisfactory the judge will enter the agreement as the temporary order.

The temporary order is critical because it will set the precedent in most cases.  More often than not the substance of the temporary order will become permanent because the parties will use the temporary order as the beginning of a separation agreement.  The temporary order hearing is also the first time the parties reveal their strategy.  I use the temporary order hearings to gauge the real issues of the case.

Make sure to check out the parts of the series Divorce 101:

First Step: Choosing a Divorce Attorney

Filing for Divorce in Massachusetts

After you have chosen the right divorce attorney for you, the next step is generally filing for divorce.  (If you have already been served and can’t file first, don’t sweat, you will still have your day in court.)  In Massachusetts we have contested divorces and uncontested divorces.  Most people file a 1B divorce which is otherwise known as a contested divorce.

What Documents Are Required to File For Divorce?

Simply speaking, only two documents are absolutely required to begin the contested divorce process: a certified marriage certificate and a Complaint for Divorce.  Note: the marriage certificate must be certified which means that it must come from your local city or town hall or the state’s department of vital statistics.  Copies from your church, synagogue, etc. do not count as certified.  Many attorneys also file temporary orders at the same time as they file the Complaint for Divorce.  (Temporary orders are the “rules for the road” covering such things as child support and alimony until either a separation agreement is entered or there is judgment from trial on the issues in the contested divorce and a division of the assets has occurred.)  Additionally, attorneys will also file “emergency” motions when filing the Complaint for Divorce because the motions need to be heard quickly.  A few examples of such motions are motions to vacate the marital home or restraining orders.  Once the Complaint for Divorce has been filed, the divorce process begins.

What Happens After the Complaint for Divorce Is Filed?

The next step is service.  A sheriff or process server must deliver, in hand, to your spouse the Complaint for Divorce and any other motions you filed with the court.  Service is required to put your spouse on notice that the contested divorce process has started.  (If you have been served, the process is slightly different for you.   Your next step after choosing an attorney, is filing an answer and helping your attorney prepare to defend against any motions that may have been filed.)

I remind my clients that once we have filed for divorce, the financial restraining order is in effect.  I also take the time after the divorce has been filed to have my clients start working on their homework: gather documents for the mandatory disclosure, prepare their marital history, and start looking into parenting classes.

Be sure to check out the posts in my Divorce 101 series:

First Step: Choosing a Divorce Attorney

The first step in the consted divorce process is choosing the right attorney for you.  This is true whether you are filing first for divorce or if you have been served a divorce summons.  You might be thinking of saving the expense of an attorney and going it alone but let me warn you: if in reality your situation isn’t as “simple” as you think you might spend more in the long-run hiring an attorney to help correct the original mistakes.  At the very least I would suggest contacting a divorce or family law attorney and taking advantage of a free consultation.  I have had many instances where people were very grateful after talking with me that they didn’t go it alone.  (To be fair, I have also happily counseled people to seek an uncontested divorce on their own because their individual situation warranted the simplicity.)

Tips on Choosing a Divorce Attorney

1.  Ask your family and friends for referrals.  If you have already told those around you that you are thinking about or preparing for divorce, you might want to ask them if they know of any attorneys.  Those who have already gone through the divorce process would be the best to ask because they can speak from personal experience.

2.  Search the web.  Those attorneys that are willing to share their experience and expertise online are generally the same way in person.  Translation: he or she isn’t in the business of racking up unnecessary billable hours.  The Internet offers a tremendous amount of information that can help you prepare and make informed decisions in your contested divorce.  I like meeting with clients that have done some research because I know they will be engaged in the process which in the end helps save the client time and money.

3.  Interview at least three attorneys.  Believe it or not when I have a potential client call me in what I call the “inquiry phase” of divorce — they know that divorce is the next step and are in the process of preparing to take the divorce step — I often recommend that he or she interviews a few other attorneys to see what they are saying and suggesting.  Much like a doctor’s initial diagnosis, a second opinion is wise.

4.  BE COMFORTABLE!  While this is tip #4 it should probably be #1.  A divorce is emotional, it is draining.  You need an divorce attorney that is a guide and will help you feel comfortable.  You want to feel like your divorce attorney is in your corner.  You definitely do not want to be battling your soon-to-be-former-spouse and your divorce attorney.  If you don’t feel right in the initial meeting, move on.

The Initial Meeting With Your Potential Divorce Attorney

After you set a meeting with your potential divorce attorney start writing down your questions.  Come prepared with a laundry list of thoughts and issues so you can make the most out of the meeting.  This also assists the attorney in giving more focused thoughts.  While many divorces start to seem the same, the reality is that each situation is unique so you want the potential divorce attorney addressing your situation and not one like yours.

Finally, be prepared to talk fees.  Don’t leave the initial meeting without discussing such things as whether the attorney charges by the hour or offers flat-fee or value billing.  Also, discuss whether the attorney charges a retainer and if so how much.  Money isn’t always fun to talk about but leaving the meeting without any idea of the cost will be far more stressful than leaving with an idea of how much the divorce process might cost.

1. The parties’ federal and state income tax returns and schedules for the past three (3) years;
2. Statements for the past three (3) years for all bank accounts;
3. The four (4) most recent pay stubs from each employer for whom the party worked;
4. Documentation regarding the cost and nature of available health insurance coverage;
5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party;
6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce;
7. Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.

Prepare Mandatory Disclosure Documents in Advance; Save Time and Money

If you haven’t filed for divorce — or if you have just been served — you know what documents are going to be required so begin gathering these documents in advance.  (Don’t worry if you didn’t file first for divorce, you will still be heard.)  You save time by gathering these mandatory documents in advance because you are prepared; most people are scrambling at the last minute.  If you haven’t filed for divorce, this means that when you find the right attorney you will have all the mandatory documents when you are ready to hire her or him and get the process started.  Even if you have just been served and you are reading this, in addition to finding an attorney you might as well start collecting these mandatory divorce documents because I can assure you that your attorney will ask for them right away.  And any time during a divorce you are saving time you are also saving money because your attorney isn’t having to bill you for tracking you down with letters or by having to take the time themselves by going through banks, brokerages, etc. on your behalf.

In Massachusetts there is no clear advantage for filing first.  Some attorneys may argue that by filing first you can “set the agenda” by picking a date for the temporary orders.  While this certainly is true sometimes, the reality is that the temporary order date secured by the party filing first is usually subject to the availability of the opposing attorney.  It is routine practice for attorneys to assent to moving court dates for conflicting calendars.  This of course means that the minor advantage is now moot.  Also, there are certainly strategies and motions that can be filed to make sure the agenda isn’t being set by one side.

Additionally, some attorneys think that by filing first they can ram through a lot of nonsense motions that are intended to throw the other side off their game plan.  If your attorney is suggesting filing a series of motions that you don’t understand the need for, BE AWARE.  (It is important to find the right divorce attorney for you.) Attorneys usually bill by the hour and some like to find ways to run up the bill.  Filing nonsense motions also has the added consequence of ratcheting up the divorce heat.  Too often I have seen a client come to me saying that the two sides are fairly amicable only to then be thrown on the defense unnecessarily by bogus motions.  The only winner in such a scenario is the attorneys because they are getting the billable hours.  Don’t get me wrong, sometimes a series of motions is entirely appropriate but if you have an attorney that has a laundry list of “standard motions” you should take caution.

Bottom line: if you get served before you have the chance to file, don’t sweat it.  The game isn’t rigged for the fastest filer.  More often than not a divorce is a marathon awarding those with endurance and the ability to pace themselves.

Massachusetts, like every other state, has laws providing for so-called “no fault” divorces.  What is a no fault divorce?  In Massachusetts a no fault divorce is generally based on “irreconcilable differences” or an “irretrievable breakdown of the marriage” and therefore the person seeking the divorce needs to prove no specific reason for pursuing the divorce.  However, a fault divorce is just the opposite; the party pursuing the divorce for grounds — let’s use adultery as an example — must go through the processing of proving that there was in fact an adulterous relationship.

Pursuing divorce based on grounds is usually more complicated (and therefore more costly) than a no fault divorce.  While there is undoubtedly a lot of pain associated with an unfaithful spouse and while there may be some perceived vidication of proving that an adulterous relationship was in fact happening, the process is more often than not more grueling and can create even more pain than a “simple” no fault divorce.

There are a wide variety of restraining orders.  The most commonly used domestic relations restraining order is referred to as a 209A restraining order because it is governed by Massachusetts General Laws ch. 209A.  This restraining order offers a variety of remedies ranging from the least severe — and order from the court ordering the defendant to refrain from abusing the plaintiff — to the more severe — ordering custody of any minor children to plaintiff (the person filing the restraining order) and/or ordering the abuser to vacate the home.  An important note: 209A restraining orders are available to adults and minors.  No one should suffer abuse and therefore the statute makes itself available regardless of age.

209A is a very powerful statute intended to safeguard a needing individual.  The statute provides options for relief even when the court is closed by authorizing judges to issue orders to the appropriate law enforcement agencies until more formal legal proceedings can be had.  Additionally, the statute also allows for temporary orders to ensure that the plaintiff’s safety is not in jeopardy for any amount of time between the hearing and a judgment.

If you or your children are experiencing abuse as a result of a divorce or even if the abuse is the central reason you are contemplating divorce, know that there are options; seek help.

One of the options available is called an Order to Vacate the Marital Home.  Often referred to as vacate orders, they are governed by Massachusetts General Laws ch. 208 §34B.  Basically the order allows the court to remove your spouse from the home for up to 90 days.  This period of time can be extended if the “court deems [it] necessary or appropriate if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.”  I should also mention that a vacate order can be sought anytime during the divorce action.  This means that even if you and your spouse had planned on or continued to live together after the divorce action started and things take a turn for the worse, you can stil pursure this order.

My experience is that these orders are an “extraordinary” measure and that the court takes them very seriously.  A vacate order should never be pursued out of spite.  While it is possible to pursue a vacate order on short notice (three days is the minimum according to the statute) generally your spouse has a right to be there and must be given notice.  However, in situations where there is “substantial likelihood of immediate danger to [the moving party's] health, safety or welfare or to that of such minor children from the opposing party” the court may issue a vacate order without notice to the other party.  In this situation though notice must immediately be given after the order is issued and the party ordered to vacate is given the opportunity to be heard by the judge no later than 5 days after the order issued.

There are other options, such as restraining orders, that are available as well.  Your safety and the safety of your children should be your most important concern.  If you are in fear of your spouse and are seeking to begin divorce proceedings or feel unsafe after the proceedings have begun you should seek help; there is protection available.

Too often people will call me or meet with me weeks after they have been served.  Most people do not want to admit or acknowledge that the divorce is now happening.  Some people assume that by doing nothing they can prevent the divorce from happening.  I can assure you that in Massachusetts this is not the case; unless you can find grounds to dismiss the complaint or the plaintiff voluntarily withdraws the complaint, the divorce will proceed.

Start by reading the summons.  There is a lot of important information on that one page.  One very critical piece of information is the automatic restraining order that is mentioned on the bottom.  This order prevents both parties from, among other things, engaging in certain financial transactions.  This effect of this automatic restraining order applies immediately and failure to comply may result in contempt of court.

After reading the summons and the immediate effect of the automatic restraining order the next critical deadline is the answer.  An answer but given to the plaintiff’s attorney.  (In the event that the plaintiff is representing him- or herself then the answer must be given to him or her.)  Failure to do so could result in a loss of certain rights.

Finally, in all legal matters it is highly advisable to seek the counsel of an attorney.  Divorce will have a significant effect on your financial and legal rights.  Do you really want to travel on such an important journey without a compass?  Ask friends, co-workers, and family for referrals.  Check with the Massachusetts Bar Association or your local county bar association.  And certainly feel free to contact me for a free consultation.