A STEP-BY-STEP Guide to Getting an “uncontested” “no-fault Divorce”, or “1A Divorce”
In Massachusetts an uncontested divorce, also known as a “1A divorce”, both spouses agree that the marriage is “irretrievably broken” and the parties have reached a written agreement about support payments, parenting time, alimony, child custody & dividing shared property (marital assets). In a No-fault divorce, the parties have agreed on all issues required to end their marriage, so there is no need to argue that one spouse did something to cause the marriage to fail and there is no need for a judge to hold a trial. There is just a short hearing for the judge to approve the divorce, which means an uncontested divorce is significantly less expensive and is resolved much quicker than a contested divorce.
Steps to Filing an “Uncontested”, “No-Fault Divorce”, or a “1A Divorce”
Step 1: Find Out if You Can Get Divorced in Massachusetts
You can file for divorce in Massachusetts if: (1) You’ve lived in the state for 1 year, or (2) The reason the marriage ended happened in Massachusetts and you have lived in the state as a couple. To seek a no-fault divorce in Massachusetts you will need to state the “grounds” or legal cause for the divorce (the typical answer is an “irretrievable breakdown” of the marriage that occurred on a given date).
What Court do I file in? There is a Probate and Family Court in each county in Massachusetts. For Example, in Melrose, we are within the jurisdiction of the Middlesex Probate and Family Court which means that if you or your spouse live within Melrose or any town or City in Middlesex County you would file for divorce in Middlesex Probate and Family court. However, if your spouse still lives in the county where you last lived together, you must file for divorce in the Probate and Family court in that county.
Step 2: Write a Marital Separation Agreement
You will need to write a separation agreement, which is often the most complicated and time-consuming part of filing a divorce and both spouses must sign it and have it notarized. A marital separation agreement is a written and binding contract between you and your spouse that outlines how you are going to divide your marital property, child custody, child support payment, alimony, visitation, and all other issues related to your divorce.
There are different ways to reach an agreement. You can negotiate on your own with your spouse, hire a divorce attorney to help you to draft the marital separation agreement, or use a divorce mediator to help settle the issues. A separation agreement can be a binding contract between you and your spouse (this is called a separation agreement that “survives” the divorce). Sometimes it is not a separate contract, but becomes part of the divorce judgment (this is called a separation agreement that has “merged” with the divorce judgment.) It is important that you make the choice that is right for you. It is helpful to speak to an experienced divorce attorney about the choices you make. If you are not able to talk with an attorney that handles divorce cases, the law libraries and public libraries have examples of marital separation agreements.
Step 3: Fill Out Your Divorce Paperwork
For everyone-Anyone filing for a 1A divorce needs to file:
- A certified copy of your marriage certificate, which you can get from the Registry of Vital Records or your city or town.
- Separation agreement (you already have this prepared).
- Joint Petition for Divorce form (CJD-101A) signed by both spouses or their lawyers.
- Affidavit of irretrievable breakdown signed by the spouses.
- Record of Absolute Divorce(R-408) from the Registry of Vital Records.
- A financial statement from each spouse.
If you have minor children under 18, and couples with children under 18 must also:
- Attend a parent education program unless it is waived by the court. You will receive a certificate after attending.
- Fill out these forms:
- Affidavit disclosing care or custody proceeding (OCAJ-1 TRC IV)
- Child Support Guidelines worksheet (CJD-304)
- File those forms with your Parent Education Certificate at the clerk’s office.
- Some people may also need to file:
- An Affidavit of indigency if you can’t afford the fees. See Indigency for more information.
- Findings and Determinations for Child Support and Post-Secondary Education (CJD 305) if you don’t think the child support guidelines should apply to your case you should contact a child custody attorney before going any further.
- Motion to waive attendance at parent education program (CJD-444) if you can’t attend a parent education program
- Motion for temporary orders (CJD 400)(i.e. child custody, child support, spousal support, etc.) if you need a court order until your divorce hearing. Fill in what you want the court to order. With this, you also need an Affidavit, where you explain what happened and when to the judge, and a Proposed Order form. Write exactly what you want the court to order on this form.
Step 4: File Your Paperwork for Divorce and the Fees Associated
Fees – You’ll need to pay the following fees for a 1A divorce. You can pay your fees with a check (a bank check is preferred because some courts do not allow personal checks), money order, cash, or a credit card.
|Divorce filing fee||$200.00|
|Divorce filing surcharge||$ 15.00|
|Cost of a summons||$ 5.00|
|Cost of Service by Sheriff or Constable||Depends|
How to file-You can file for a 1A divorce in person, by mail, or online
If you or your spouse lives in the county where you lived together, file the required forms and fees with the Probate and Family Court in that county. Otherwise, file in the county where you or your spouse live now.
Step 5: Attending the Divorce Hearing
The court will set a hearing date after all paperwork has been filed. Both spouses must attend the hearing unless the court has accepted an attendance waiver for one spouse. A spouse would have to file a motion requesting a waiver of attendance before the hearing for this. The judge may ask questions about the affidavit or separation agreement.
At the hearing, the Judge will review your paperwork to ensure that your agreement is fair and reasonable, that it resolves all issues in your divorce, and it acts in the best interests of your children, if any. At the hearing the Judge will ask each of the spouses under oath questions to determine if the agreement is fair and reasonable and if the Massachusetts requirements are met and if the judge has determined that there is an irretrievable breakdown of the marriage (that your marriage has broken down and can’t continue), the judge will read the separation agreement to make sure it covers the necessary issues and is fair to both people. Then the judge will accept the separation agreement, and an order will be entered. A judgment nisi is entered and The divorce is finalized 120 days after the judgment date
A “judgment nisi” is the time between when a judge grants your divorce and when the divorce becomes final. It gives both people a chance to change their minds and make sure that the other person didn’t lie about their property before the divorce is final. You don’t need to do anything during this time, and your divorce will become final automatically. The judgment nisi becomes final 90 days from the date it was entered. You can’t remarry until 120 days from the entry date of the order approving the divorce.
While filing for a Joint Divorce is the simplest and least expensive way to get divorced in Massachusetts, it can only be utilized if the parties can come to an agreement. It is extremely important that great consideration is given to the terms of the Separation Agreement because they could affect the rest of your life. Issues such as child support, alimony, and estate claims have serious financial consequences that are not easily changed. The experienced attorneys at the Martino Law Group, LLC, can help you understand these aspects and do our best to ensure you get your desired results. If you want to determine whether or not you need to hire a finance lawyer for your divorce, or how to protect your financial future after a divorce, refer to this link to learn more about how a divorce finance lawyer can help you.