Does it Matter Who Files First for Divorce in Massachusetts?

As part of my family law practice, I do consultations with people all time who are not ready to get divorced but want to know their rights and what to expect if their marriage does end in divorce. One of the questions I am asked most frequently is whether or not it matters who files for first for divorce. 

The simple answer is that it does not make a difference who files for divorce first. The judges in the Massachusetts Probate and Family Courts do not care who files first. For the most part, they do not even care why you are filing for divorce. Anyone who wants a divorce in Massachusetts is entitled to get one regardless of the reason why. 

The person who files first is referred to as the Plaintiff and the other person is the Defendant. The only difference this designation makes is that the Plaintiff is required to present their evidence first at trial and is supposed to be the one charged with preparing the exhibit books if the case does go to trial. 

In Massachusetts you can file for either a fault or no-fault divorce. No-fault divorce is the most common type of divorce. In fact, filing for divorce based on fault is rare. If you choose to go this route you may have to prove the fault in court, which can be difficult, costly and time-consuming with no added benefit. 

Instead of citing fault, most people getting a divorce cite the “irretrievable breakdown of the marriage” as either a contested or uncontested complaint for divorce. You can file an uncontested complaint for divorce (referred to as a 1A complaint for divorce) If you can agree with your spouse about the terms of your divorce and child custody agreement you can present written agreements to the state without needing to go to court. This approach means your divorce never has to be subject to public scrutiny. It also means that you can move more quickly through the stages of divorce, saving time, money and emotional strain.

One of the best ways to come to a divorce and/or child custody agreement out of court is through divorce mediation. Divorce mediation is a process during which a couple asks a neutral mediator to help them come to an agreement about things like spousal support, child custody, property and a parenting plan and schedule. 

Mediation is a compassionate, completely confidential divorce process that can help you come to an agreement on all aspects of your divorce. You can discuss almost anything related to your divorce in mediation. If there are emotional issues to work through in your divorce, mediation can help people getting a divorce to set boundaries and practice caring and non-combative communication. This can be especially necessary for those who have to parent children together.

Some people can come to an amicable agreement about their property and child custody in divorce. Others may need to hire a divorce attorney to ensure they are fairly treated in their divorce. Whatever your needs, we can help you.

If you are in the process of trying to determine what your rights may be if your marriage ends in divorce call us at (978) 341-5040 for a consultation today.