Litigation Services

Litigation FAQs

Divorce

What is the difference between a legal separation and a divorce?

There is no actual “legal separation” in Massachusetts. However, you may decide you do not wish to end the marriage, but rather, live apart from your spouse for an indefinite period of time. In such an instance, you could seek the Court’s assistance in establishing ground rules as to custody of your children, visitation, child support, and spousal support by filing a Complaint for Separate Support, Custody and Visitation. This action would not resolve issues concerning the division of your assets and liabilities, nor would it dissolve the marriage. Therefore, proceeding in this fashion is cautioned and should be discussed with your attorney.

A divorce dissolves the marriage and resolves all issues of the marriage including custody, visitation, child support, spousal support, health insurance, as well as division of the marital assets and liabilities.

What is the difference between physical and legal custody?

Legal custody refers to the ability to make decisions concerning the health, welfare and education of the child. Physical custody refers to where the child resides. For either legal or physical custody, the parents can be granted primary or shared custody.

How long will the divorce take?

If you and your spouse have reached an agreement on all issues and you have filed all of the required documents with the Court, you may receive a Court date within a few weeks. If there are any contested issues, the divorce could take up to a year or more.

How is child support calculated?

In Massachusetts, child support is determined pursuant to child support guidelines. The formula considers both parties’ gross incomes, the number of children and the cost of childcare and medical insurance. The specific circumstances surrounding custody may warrant a deviation from the guidelines formula.

How much will the divorce cost?

Every case is unique in its circumstances. Therefore, it is often difficult to assess the actual cost of your divorce. The attorneys at Fraier & Maillet bill at an hourly rate, and normally require a retainer before commencing their representation. The actual fees and required retainer can be discussed at your initial consultation.

Modifications

Can I modify custody or child support?

All issues concerning the children, including child support, parenting schedules, custody and allocation of college expenses can be modified if you have experienced a material change in circumstances, and the Court finds that a modification would be in the best interest of the child.

Can I modify an alimony order?

Whether you are able to modify alimony will depend on the language contained in your divorce agreement or judgment. Your attorney will review that language in order to discuss your options.

Contempt

What is a Complaint for Contempt?

If one party fails to obey the terms of a Court order or judgment, the other party may file a Complaint for Contempt. Complaints for Contempt can be filed for noncompliance or violations of any terms of the order or judgment, whether it be payment of child or spousal support, custody, visitation or transfer of assets. If the court determines that a party has willfully disobeyed the court order or judgment, the Judge can find that person in contempt and issue an appropriate remedy.

Who pays for the attorney’s fees in a Contempt action?

If the Court finds the other party to be in Contempt, you may request that the Court order that person to pay your attorney fees. It is within the Court’s discretion to award a party attorney fees, and as such, your attorney will discuss with you the propriety and possibility of obtaining attorney fees in your particular case.

Paternity

Can I establish child support if we were never married?

Yes. Parents are financially responsible for supporting their children, whether they are separated, divorced or never married. There are two different ways to establish a support order when the parties were never married, a Complaint to Establish Paternity and a Complaint for Support, Custody and Parenting Time. Your attorney will determine which action to file after meeting with you.

What is the difference between a Complaint to Establish Paternity and a Complaint for Support Custody and Parenting?

If you and the other parent were never married, and you wish to establish an order of child support, custody or parenting schedule, you will need to file a Complaint to Establish Paternity or a Complaint for Support, Custody and Parenting Time.

A Complaint to Establish Paternity is filed when the Father has not yet been adjudicated to be the parent of the child, because he did not sign a Voluntary Acknowledgment of Paternity at the time child was born. A Complaint for Support, Custody and Parenting Time is filed if the Father has already signed a Voluntary Acknowledgment of Paternity or otherwise has been determined by a Court to be the legal Father of the child. Either parent can petition the court to establish child support, custody and parenting arrangements.