Frequently Asked Questions about divorce

Attorney P. Christopher DiOrio

Q. “Is there a difference between separation and divorce?”

A. Yes. A separation is a legal status where the husband and wife remain married, but their relationship is governed by a court approved agreement which usually covers areas of child custody, child support, property issues, insurance issues and other matters regarding the marriage.

A divorce is a legally sanctioned ending of a marriage, which also requires either an agreement between the parties or a judgment that deals with all of the issues of the marriage. Although we can create a separation plan for you, there are very few separations in Massachusetts anymore. The cost is almost as much as a divorce in some cases, and you’re still married, which means if you want to obtain a divorce in the future, you must go through the process all over again.

Q. “Does there need to be ‘grounds’ for a divorce?”

A. A “ground” is a “reason” for divorce. A divorce in Massachusetts can be granted for any of the following reasons:

  • Adultery
  • Impotency
  • Desertion for at least one year
  • Cruel and abusive treatment
  • Refusal to support your spouse when able
  • Confinement in a penal institution for five or more years
  • Irretrievable breakdown of the marriage

The last reason, otherwise known as “no-fault,” is by far the easiest and most popular method of divorce in Massachusetts.

Q. “Can I file for divorce in Massachusetts?”

A. If the “cause” or “grounds” for divorce occurred outside of Massachusetts, the person filing must have resided in Massachusetts for at least one year before filing for the divorce. If the cause occurred inside Massachusetts, at least one of the spouses must be a Massachusetts resident.

Q. “I am afraid of what my spouse will do if I say I want a divorce. What can I do?"

A. If you are legitimately fearful for your safety, Massachusetts law allows you ask a court for a 209A restraining order, which can prevent a spouse from contacting you and can remove the person from the home, as well as protect you from harm. The law requires that you have actually been harmed, or that you are in “imminent fear” of being harmed.

If you are fearful, you should discuss the possibility of obtaining a restraining order from the criminal or probate and family court before or during your divorce process.

Q. “What is the difference between an uncontested and contested divorce?"

A. An “uncontested” divorce is available to spouses by filing a Joint Petition for divorce based on irretrievable breakdown. The parties also file sworn affidavits regarding the breakdown, as well as a “separation agreement” which outlines how the parties are dealing with all of the marital issues such as child custody, support for children, insurance, and property and asset/debt division. After the Court has a brief hearing to review whether the agreed provisions are proper, the court will grant the divorce. A “contested” divorce occurs when one spouse files a divorce complaint against the other spouse. The complaint is served on the other spouse by a constable, and the party that is being served has twenty days to respond the allegations in the divorce complaint. Even after this type of divorce is started, however, the parties can still come to a mutual agreement for divorce.

We are always glad to answer your questions without charge. You may email P. Christopher DiOrio at chris@lawyersact.com or call his cell at 508-813-8855.