Certain professionals are deemed “mandated reporters” by law who are obligated to look for “serious” physical or emotional injury which results from abuse/neglect in order to make a 51A report.

M.G.L.A. 119, sec. 21 defines a mandated report as being: a person who is (i) a physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, allied mental health and human services professional licensed under section 165 of chapter 112, drug and alcoholism counselor, psychiatrist or clinical social worker; (ii) a public or private school teacher, educational administrator, guidance or family counselor, child care worker, person paid to care for or work with a child in any public or private facility, or home or program funded by the commonwealth or licensed under chapter 15D that provides child care or residential services to children or that provides the services of child care resource and referral agencies, voucher management agencies or family child care systems or child care food programs, licensor of the department of early education and care or school attendance officer; (iii) a probation officer, clerk-magistrate of a district court, parole officer, social worker, foster parent, firefighter, police officer; (iv) a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, or person employed by a church or religious body to supervise, educate, coach, train or counsel a child on a regular basis; (v) in charge of a medical or other public or private institution, school or facility or that person’s designated agent; or (vi) the child advocate.
DCF defines “abuse” as a nonaccidental commission of any act by a caretaker which causes or creates a substantial risk of physical/emotional injury or constitutes a sexual offense or any sexual contact between a caretaker and a child.

The term “neglect” means a “failure by a caretaker” to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability/growth and/or any other essential care to support life.

If a 51A report is not “screened out” then DCF must conduct an investigation within
24 hours of receiving the report and only if DCF has “reasonable cause” to believe that a child’s safety is in immediate danger from further abuse or neglect (if other findings warrant it DCF will open a full 10 day investigation).

Following a decision to support a 51A report DCF will then conduct an “Assessment” which must be completed within 45 working days of the support decision. The purpose of an Assessment is to determine what if any DCF services are necessary and appropriate and who will provide those services.

The Assessment results in a document which purpose is to evaluate the general family situation. If an Assessment concludes with a recommendation for ongoing services
DCF then provides a “Service Plan” within 10 days of completing the Assessment.

If needed DCF can refer a case to the district attorney which serves the purpose of notifying the DA whenever DCF finds “reasonable cause to believe that any of the following conditions resulted from abuse/neglect”:
(a) A child is dead;
(b) A child has been sexually assaulted;
© A child suffered brain damage/loss of substantial impairment;
(d) There is evidence of sexual exploitation;
(e) There is evidence of serious physical abuse or injury.

Under certain circumstances official records can be used as substantive evidence.
Their content must record primary facts and it must not contain second-level hearsay
such as conclusions or expression of opinion or judgment.

A record of those primary facts in DCF reports made by a public officer in the performance of official duty (a DCF agent) can be prima facie evidence as to the existence of that fact.

Any source of information who can testify and be subject to cross examination will be afforded more leeway for admission of opinion, evaluation or judgment.

A hundred years or so ago only impotency and adultery were grounds for divorce. Since then there have been instituted seven so-called “fault” grounds. Up until 1977 only six of those grounds were available to a husband (a wife could not be charged with nonsupport which is basically neglectful action towards children). In 1977 either spouse was chargeable with nonsupport.

Today Massachusetts Probate Courts recognize the seven fault grounds pursuant to
G.L. c. 208, §§ 1 and 2 and those are:
1. Adultery;
2. Impotency;
3. Utter desertion, continued for one year next prior to the filing of the complaint;
4. Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium or other drugs;
5. Cruel and abusive treatment;
6. Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance for the other spouse by a spouse who is sufficiently able; and
7. Sentence or confinement for life or for five years or more in a federal penal institution or a penal or reformatory institution in Massachusetts or in any other state.
In 1975 the Mass. legislature adopted a “no-fault” concept by authorizing divorce for irretrievable breakdown either with or without a separation agreement.

Typically, a divorce for irretrievable breakdown requires no trial. All that is really required is that the Court is satisfied with your explanation of what happened to cause your separation and when that occurred.

The Fault Grounds are defined as:

Cruel and Abusive Treatment

This is probably the most common fault ground and it has been played out in common law cases. There has to be evidence of a number of acts which is usually presented via testimony of the person bringing the case (although in some cases a single act could be sufficient, such as knocking down your spouse, slapping and beating with many bruises, even if an isolated incident).

Mental cruelty may be held to be evidence of a prima facie case, one which proves all elements. Further, it has long been held mere words that wound “feelings” and which affect your health or create reasonable apprehension of such satisfies it (such as words that cause you to be emotionally upset). Acting in self defense is not cruel and abusive.

If the divorce is uncontested and you are claiming cruel and abusive, the proof needed is not going to be as great as if your divorce was contested. Further, your lawyer should select the incidents carefully and not overkill, just introduce highlights.

Utter Desertion

Must be one year next prior to the filing of your complaint for divorce.
Elements are:
• the defendant left voluntarily,
• the defendant left without justification,
• the defendant did not intend to return at the time of departure,
• the plaintiff did not consent to the defendant’s leaving, and
• the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of filing the complaint (the one-year must expire before you file the complaint).

Circumstances that constitute leaving “without justification” have not been well defined. If there is “ill treatment or misconduct” insufficient for cruel and abusive that may be sufficient. Cohabitation means living or dwelling together under conditions similar to that being a family relation but not necessarily sexual. The date the parties last lived together will trigger commencement of the one-year period. If the defendant and the plaintiff resume cohabiting within the one-year waiting period, the action cannot be maintained unless defendant’s “return or other act” was “not made or done in good faith, but with intent to defeat such action.” A party may be “deserted” even though the spouse never physically left the marital home (ex. defendant excluded the plaintiff from family and activities or refused to cohabit and refused to take back after leaving the home).

Adultery

Adultery is defined as “married person … has sexual intercourse with a person not his spouse.” The person with whom the defendant has allegedly committed adultery cannot be named in the complaint.

Intoxication

A divorce fault may be for gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor or other drugs.
This requires proof:
• the defendant was both grossly and habitually intoxicated;
• the intoxication was voluntary; and
• the intoxication was the product of excessive use of liquor or other drugs.
The mere use of drugs or alcohol is not sufficient there must be an excessive use that becomes habitual and must continue up to the time of filing. Only severe, long-term patterns will be sufficient.

Impotency

Impotence is defined as the “inability to have sexual intercourse,” and is probably the most rarely used ground (not to be confused with sterility).

Nonsupport

Gross or wanton and cruel refusal and/or neglectful providing of support proven by:
• neglect was gross or wanton and cruel, and
• the defendant was of sufficient ability to pay support.
The defendant must show his income is sufficiently lacking and plaintiff must show the cruelty “cause[s] injury to life, limb or health, or create a danger of such injury or a reasonable apprehension of such danger upon the parties continuing to live together.”

Sentence or Confinement to Prison for Five Years or More

This occurs when the other spouse is sentenced or confined “for life or for five years or more in a federal penal institution or a penal or reformatory institution in this or any other state ….” (a sentence for three to six is sufficient). It is not necessary that the plaintiff wait for service of the term.

M.G.L.A. Ch. 269, sec. 14A provides in part:

Whoever telephones another person, or causes any person to be telephoned, repeatedly, for the sole purpose of harassing, annoying or molesting such person or his family, whether or not [a] conversation ensues, or whoever telephones a person repeatedly, and uses indecent or obscene language to such person, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than three months, or both.

It is not harassment if the intent of the caller is to reestablish a previous relationship with the complainant. Calls have to rise to the level of a personal attack. To qualify as repetitive there must be at least three or more calls. Evidence of a history of calling is admissible to show a purpose in making the calls notwithstanding the general rule against admitting evidence of prior misconduct. If the calls are numerous and obviously vexatious (troublesome or annoying) to the victim then the intent to harass, annoy or molest may be inferred. Basically, requisite intent can be inferred from the number of calls, the tenor of the calls, their sequence and timing, and defendant’s persistence in placing the calls despite repeatedly being asked to cease, including being warned that police would be contacted.

The telephoning law is less serious than the law against stalking which occurs for example whenever your jealous ex. or spouse has the intent of doing you harm by assaulting or killing you and you are also being followed with that in mind. The telephoning law is a misdemeanor (up to a year) while stalking is a felony (year or more).

M.G.L.A. Ch. 265, sec. 43 the “Stalking” law provides in part:

(a) Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than five years or by a fine of not more than one thousand dollars, or imprisonment in the house of correction for not more than two and one-half years or both.

Stalking is a crime of intent. A pattern or a series of conduct in this context would involve more than two incidents.

1. physical harm or attempted physical harm;
2. fear of physical harm; and/or
3. forced sexual relations

Family and household members are defined as persons:

1. who are or were married to one another;
2. who are or were residing together in same household;
3. who are or were related by blood or marriage;
4. who have a child in common, even if never been married or have never lived together; or
5. who are or have been in a substantive hetero/homosexual dating or engagement relationship [factors in deciding what is substantive include length and type of relationship, frequency of interaction, whether relationship has been terminated by one of the parties, and length of time since termination]

R/O can also include a protection order from another jurisdiction (full faith and credit)

Any r/o, visitation or custody order from a probate court supercedes all other courts; other courts can order support but not visitation

[plaintiff should bring receipts other documents of out of pocket expense or reliable evidence of defendants income for temporary support orders]

If after ex-parte or full hearing judge finds substantial likelihood of abuse, defendant can be ordered to:

1. refrain from further abuse of victim;
2. refrain from contact, directly/indirectly;
3. move from residence and stay away from residence/workplace;
4. temporarily relinquish custody of minor children;
5. pay temporary financial support where there is legal obligation to do so;
6. pay victim money lost resulting from abuse;
7. refrain from abusing and/or no contact with minor children;
8. surrender keys to house.

Details of history which court can use in making its findings include, severity and nature of abuse: emotional (ignoring, withholding intimacy, using guilt to gain control); psychological (name calling, constant criticism, belittling in public); physical (throwing objects, threatening to strike, shoving, punching, slapping, kicking, choking and using weapons); sexual abuse, or combination of above. Regardless, purpose is to control behavior through manipulation and fear of retribution. One or more below dangerous – risky (factors) behavior then the plaintiff is probably in serious danger and or even at risk of death:

i. extremely jealous or possessive and frequently suspects client of having intimate relationships with others;
j. isolates from friends, family/coworkers; no personal social life, and socializing is done with partners friends or people of whom he approves;
k. he is quick to anger over inconsequential things or for no reason at all, particularly if that anger results in physical violence or throwing of objects;
l. he speaks of owning her (you belong to me…if I cant have you no one else..);
m. obsesses about knowing where she is at all times and with whom;
n. resents time she spends with children;
o. has frequent depressions around issues involving relationship;
p. beaten client badly enough to leave visible injuries/hospitalization;
q. threatened to use weapons or has done so;
r. expressed dreams or fantasies of killing her or children;
s. has disfigured her or killed a pet that she loved;
t. has cut her up or burned her belongings to keep her from ending relationship;
u. has taken her or children hostage; and/or
v. threatened to kill her and/or children and then intention to commit suicide.

Make a safety plan before going to court for the restraining order since abused persons are at greatest risk when they seek one or otherwise attempt to end the relationship.

At court Plaintiff will have to write out ex-parte affidavit (making court appearance alone) and be careful to not forget to add something that has been forgotten or where there are important facts which will further aid the court in making determination. This initial affidavit should state clearly facts and circumstances of most recent abuse; any history of prior abuse;
use of firearms/other weapons, any abuse of children, no matter how slight and any abuse resulting in hospitalization of plaintiff or children. Evidence of prior abuse significantly contributes to fear of imminent serious physical harm as a result of most recent incident. There must be by preponderance of evidence existence of substantial likelihood of imminent danger of abuse.

At the court hearing (second) each party may testify and present witnesses or other relevant, reliable evidence. Hearsay is admissible as long as there is fairness in what evidence is admitted and relied on. A modest amount of cross examination may be permitted.

The burden at the hearing is on the complainant to establish facts justifying the issuance and continuance of an abuse prevention order. The court must grant the defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief. There is no burden placed on defendant to testify or present evidence. He only need appear at the hearing. Plaintiff must make the case for awarding relief. An inference adverse to the defendant may be drawn from failure to testify, even if criminal proceedings may be brought or are pending (self-incrimination). This inference cannot alone meet the plaintiff’s burden and/or justify the issuance of the order until a case is presented on other evidence. The right of defendant to be heard includes his right to testify and present evidence; including cross examine witnesses against him; however, the judge may properly not allow or limit such for good cause in exercise of discretion. The defendant/counsel should be given adequate opportunity to consider any affidavit filed in the proceeding on which the Judge intends to rely before he can elect to cross examine plaintiff/witnesses. Otherwise, rules of evidence need not be followed, provided there is fairness in what is admitted and relied upon.

Counsel can object to any unreliable hearsay in the opponents affidavit and move that it be struck from the record (any hearsay must have a reliable basis). If the judge wants to take time during the hearing to read affidavits he can take recess. Counsel can cross examine opponent on affidavit. Judge can take notice of the fact there is a lack of reliable countermanding evidence without shifting the burden of proof to defendant (depends how prepared defendant is).

A 209A order by other than probate court can determine custody or support, subject to modification, but visitation is exclusive to probate court. The request for stay away orders from minor children must be considered apart from plaintiffs stay away order and there must be independent support for the order. Appropriate reasons include:

1. finding children have been abused;
2. they have witnessed abuse of plaintiff and are afraid of defendant; and would be harmed by seeing him;
3. no visitation can be arranged with children in plaintiff’s custody without endangering plaintiff; or
4. there need be no showing if children of plaintiff are not defendants

To issue an ex-parte order to vacate house the court must determine two issues:

1. whether plaintiff shows, by preponderance, there is a substantial likelihood of immediate danger of abuse; and
2. whether order to vacate is needed to protect plaintiff from abuse

Issues of support/compensation are not decided at ex-parte hearing since they do not relate to purpose of providing emergency protection; and unlikely court will get adequate information to make informed decision which may require substantial fact finding and testimony from both sides; this is more appropriate to full hearing. Also, such orders would unlikely be enforceable before full hearing and may even trigger defendant. Complaint should indicate seeking support/compensation.

At full hearing all parties should testify under oath. General right to cross examination but judge should not permit if used for harassment or discovery purposes; however, each side should be given a meaningful opportunity to challenge others evidence. At hearing plaintiff presents evidence, followed by defendant and court decides if plaintiff has proven case by preponderance of credible evidence. In fairness the plaintiffs case must be restated such that defendant is given opportunity to read affidavit. After reading affidavits defendant can elect to cross examine. New affidavits can contain relevant additional information?

If defendant does not appear at hearing, but has been notified, court may extend temporary order for one year or less and the terms modified. If terms modified defendant must be served in same manner as if ex-parte order.

Support can be an issue at full hearing for wife and/or minor children. Guidelines should be applied and orders must be enforced which may require involvement a wage assignment. A DOR wage assignment may still take months.

Visitation should be considered in limited circumstances in hearing; focus should only be on protection of victims. If plaintiff has not permitted visitation or does not readily agree to amend petition to include such court should not ordinarily issue a visitation order. Preferred practice would be assign matter for hearing on issue at a later date.

If after that if parties agree to visitation and court agrees it would not be injurious to the child court should grant visitation (this would still be considered part of 209A case; other orders in a divorce action for same would just serve to modify that order).

If protection involves children it will be much more complicated; to determine whether a parent should have access to or custody or children. Court should conduct a safety assessment of family unit. Orders should be crafted to protect emotional and physical well being of child and non abuser while trying to preserve both relationships.

For child custody/visitation issues the court must examine the type and pervasiveness of violence to determine basis for future violence and need for protection.
The first step in this analysis is to assess level of violence. Following is list of violent acts representing a continuum increasing in seriousness:

1. credible threats of physical/sexual assault;
2. malicious destruction of partners possessions and/or childrens;
3. threatened or actual harm to pets;
4. pushing, shoving or grabbing;
5. slapping with open hand;
6. striking with closed hand/fist;
7. biting or kicking;
8. blows to head, face, breasts or genitals;
9. attempted or actual choking or strangulation;
10. use of objects to strike the victim;
11. threats or coercion to force sexual contact;
12. sadistic infliction of pain;
13. credible threat or use of knife or firearm;
14. credible threat or actual abduction of partner;
15. credible threat or actual abduction of children

A safety assessment should also consider degree of premeditation suggested and means of access to victim. Physical violence is often reinforced by acts of psychological and economic coercion. If so, consider number, frequency and pervasiveness of acts. Examples include:

1. yelling;
2. threatening;
3. swearing;
4. ridiculing;
5. criticizing;
6. embarrassing;
7. denigrating;
8. blaming alcohol or drug abuse on partner;
9. isolating partner from family, friends, employment (not permitting contacts by phone or mail, not permitting employment, punishing partner for contacts, demanding constant knowledge or whereabouts, disabling automobile);
10. sabotaging friendships, family (being unpleasant so others withdraw, threatening family and friends);
11. withholding access to economic resources (not permitting independent access to money, meticulous monitoring of money spent, not permitting credit cards or checks);
12. accusing partner of sexual infidelities;
13. manipulating children against victim;
14. persistent, repeated telephone calling,
15. following;
16. refusing to leave victims home or workplace;
17. stalking;
18. threats to kidnap children;
19. threats to harm self if partner non-compliant;
20. threatening to rape or kill partner or child.

In order to develop information in these cases you must ask specific information:

1. describe first violent incident;
2. describe most recent;
3. describe worst;
4. have there been any recent escalations;
5. does perpetrator seem obsessed with victim;
6. does he seem psychiatrically disturbed;
7. how old are children;
8. where are they during incidents;
9. what have children seen;
10. DCF or other agency been involved.

In evaluating safe visitation, court should try to identify patterns of domestic violence and consider symptomatic behavior of children.

Chronic pervasive control reinforced by severe violence is usually characterized by physical abuse intermittent or chronic over the course of relationship or marriage. It is often associated with a more pervasive pattern of psychological and economic coercion and isolation, as well as more severe forms of violent acts. Children may exhibit signs of disturbed behavior. Exposure to perpetrator may cause child to be re-traumatized and contact should be suspended until child fees and is safe.

Children respond to violence with a range of symptoms. Court must demonstrate effects of violence have been evaluated (symptoms) and that custody/visitation orders advance best interest of child. Range of reactions varies with age/gender, intensity and frequency of violence, and proximity of child to event. Very disruptive symptoms related to trauma can be exhibited by children even when not personally subjected to direct physical or sexual abuse.

Where perpetrator is seeking custody/visitation in divorce proceeding court must assess and evaluate impact of violence on that particular child.

To assess impact on child court must consider:

1. has child ever tried to intervene in violent episode;
2. has child called police to stop violence or intervene;
3. has child ever been threatened by perpetrator;
4. has child been hit or hurt by inadvertent or intended violence;
5. has child developed problems in school or with peer relationships;

Other questions should be asked relating to emotional, psychological and physical well being to determine need for professional evaluation. If there is credible evidence that child exhibits troublesome symptoms court should consider ordering supervised visits or suspending visits until an evaluation can be completed.

Court shall provide for safety and well being of child and of abused parent when visitation is awarded to perpetrator of violence. Risk of maintaining contact must be weighed against risk impact of disrupting parent-child relationship. No contact can be allowed until safety can be assured. Court should order visitation which maximizes safety and well being and of abused parent. Court should consider following re: visitation

1. order and exchange of child in protected setting or in presence of appropriate 3rd party;
2. order visitation supervised by appropriate 3rd party, visitation center or agency;
3. order abusive parent to attend and complete, to satisfaction of court, an appropriate batterers treatment program as condition of visitation;
4. order abusive parent to abstain from possession/consumption of alcohol or controlled substances during visit and for 24 hours preceding;
5. order abusive parent to attend AA or NA meetings as condition of visitation;
6. order abusive parent to pay costs of supervised visits;
7. prohibit overnight visits;
8. require a bond from abusive parent for return and safety of child;
9. order an investigation; appoint a GAL; or attorney for child;
10. imposing any other condition deems necessary to provide for safety and well being of child and safety of abused parent.

If supervised visits are required the order should delineate reason for the supervision and the parties/party responsible for such cost. The duties/obligations of person designated to supervise should be clearly explained to that person. The probation officer or GAL should meet with designated person to explain such. Supervisor must have authority and ability to stop a visit if inappropriate behavior occurs. Although a no-contact or supervised visit order may be appropriate at the outset consideration should be given to scheduling a rehearing (review) after an appropriate period of time.

Generally, best to allow the child to have some ongoing direct knowledge of abusive parent as long as safety can be assured. Disallowing all contact may foster idealization of absent parent especially in an adolescent when disillusionment with ones parent is norm. A child who grows up knowing an inadequate parent usually recognizes parental limitations. At some point every child should be allowed to learn on own that a parent is harmful, assuming child remains safe during process of learning.

Possible symptoms which may occur in children affected by violence:

1. nightmares and disturbances of sleep;
2. preoccupation with the violence;
3. feelings of sadness and uncertainty;
4. excessively sexualized behavior;
5. significant physical aggression;
6. intense devaluation of victim parent;
7. self-risking or self-harming behavior;
8. suicidal or homicidal thinking or acts;
9. disrupted school and peer functioning;
10. resistance to visitation or ending visits;
11. unusual hyperactivity or Ajumpiness@;
12. excessive fears or phobias;
13. persisting withdrawal, loss of interest;
14. poor attention and concentration;
15. intrusive thoughts of violent incidents;
16. major loss of skills (toiletry)

H 3617 Overview (internet brief highlights)
1. Alimony Term Limits
a. Long term marriages (20 plus years): alimony ends at retirement as defined by social security act.
b. 5 years or less: maximum alimony term 50% of number of months of marriage.
c. 10 years or less but greater than 5 years: maximum term is 60% of the number of months of the marriage.
d. 15 years or less but greater than 10 years: maximum tern is 70% of the number of months of the marriage.
e. 20 years or less but greater than 15 years: maximum term is 80% of the number of months of the marriage.
2. Other term limits apply for rehabilitative, transitional and reimbursement alimony.
3. Husband’s second marriage income and assets (of the second spouse) will not be considered in a re-determination of alimony in modification actions.
4. Co-habitation suspends, reduces or terminates alimony – payer of alimony must show that the recipient has maintained a household with another person continually for at least 3 months period.
5. Child support: gross income is excluded from alimony – the Court shall exclude from its income calculation gross income which Court has already considered for setting a child support order.
6. Child support: where Court orders alimony concurrent or subsequent to a child support order the combined duration shall not exceed – the longer of (i) alimony duration calculated at time of divorce or (ii) rehabilitative alimony commencing upon the termination of child support.
7. Alimony amount is limited: not to exceed recipient’s need or 30-35% of difference between parties gross incomes at time order issued.
8. Modification: income from a second job or overtime is immaterial to alimony modification if: (a) party works more than a single full-time equivalent position; and
(b) second job/overtime commenced after entry of the initial order.
9. Paying for health insurance and/or life insurance reduces alimony: setting the initial order or in modifying existing order Court may deviate from duration and amount limits.
Grounds for deviation may include – providing health insurance and/or whether payer spouse is ordered to secure life insurance.
10. Alimony term extensions are limited and require clear and convincing evidence and material change in circumstances.
11. Alimony ends with remarriage of alimony recipient.

Permanent alimony terminates upon remarriage or death of either spouse and generally is appropriate in long-term marriages where one spouse realistically can never attain the earning capacity of the other and there are insufficient income-producing assets subject to division from which the dependent spouse can enjoy a comparable station.
Lump-Sum Alimony is intended to provide for the recipient’s needs by paying a single sum. Almost never used in Massachusetts.
Percentage-Based Awards are where a party’s health is uncertain or the income is subject to fluctuation.
Temporary Alimony – under G.L. c. 208, § 17, the court has the authority to award alimony during the pendency of the action. Also, G.L. c. 208, sec. 34 factors are relevant to temporary alimony which is to maintain the status quo until all sec. 34 are fully examined during discovery and at trial.
Earning capacity can be a reflection of an obligor’s actual earnings which is useful where a person facing alimony attempts to manipulate his or her income to fool the Court.
In that case the court considers the totality of the circumstances, including the extent of the obligor’s assets that may be available and earning capacity as demonstrated by past income a
Second Family Income issues typically arise in modification. Second spouses do not have an obligation to contribute to the alimony obligations of their spouse but their income is relevant to determining the amount of income the obligor spouse has available to meet his or her alimony obligation. Consequently, if the income of the second spouse is part of the support of the household it follows that the obligor spouse has more money available to pay alimony. The obligations of the obligor to his or her second family are always secondary to obligations owed to the first.
Retirement, by itself, does not terminate an alimony obligation unless this is provided for in the divorce judgment or by modification based on a change in circumstances (subject to legislation enacted September of 2011 H 3617).
Cohabitation is not a sufficient basis for modifying or eliminating alimony. The basis for this is that the court may not limit alimony for reasons unrelated to the statutory purpose.
If alimony is to be paid pursuant to the terms of a separation agreement, very careful thought should be given to whether the alimony provisions survive the judgment as an independent contract or merge and retain no independent legal significance. If the alimony provisions survive, the judgment will not be modified unless there is a showing of something more than a change in circumstances (i.e., countervailing equities). Massachusetts case law has made it clear that these modifications will be granted only in extraordinary circumstances, such as to keep the recipient spouse off public assistance.

Contested Divorce Pleadings and Filings

Ch. 208, sec. 1A Divorce Based On Irretrievable Breakdown

Be sure to provide a packet containing the documents listed below to the appropriate Probate and Family Court when initially filing for a contested divorce.

• The complaint for divorce.

• The original or certified copy of the civil marriage certificate, which is available to clients married in Massachusetts through the Registry of Vital Records and Statistics in Boston. [Contact the registry at 150 Mount Vernon St., 1st Floor, Dorchester, MA 02125-3105; (617) 740-2600. The registry is open to the public from 8:45 a.m. to 4:45 p.m. on weekdays. Certified copies of marriage certificates are available at the registry counter for $18. Clients can also obtain certified copies of their marriage certificates over the Internet (http://www.uscerts.com), or by telephone at (617) 740-2606, for $42.50 (with additional certified copies of the same record for $37). If you do not have the civil marriage certificate on hand and wish to file the complaint immediately, you should simultaneously file a motion to delay filing of marriage certificate with a proposed order for the judge to sign.]

• The standard form affidavit disclosing care and custody proceedings, if the parties have minor children, in accordance with Trial Court Rule IV.

• A signed uniform counsel certification form, which must be printed on green paper, stating that you complied with Rule 5 of the Supreme Judicial Court Uniform Rules of Dispute Resolution (SJC Rule 1:18).

• Statistical form R-408, the certificate of absolute divorce or annulment.

• The public assistance affidavit, which must be filed with all petitions or complaints involving children pursuant to Trial Court Rule X.

• A bank check or money order for $220 ($200 fee per, $15 surcharge per, and $5 for the summons), made payable to the register of the particular Probate and Family Court.

Uncontested Divorce Pleadings and Filings

Joint Petition For Divorce

Ch. 208, sec. 1A (Irretrievable Breakdown)

Joint Petition For Divorce (signed by both parties)

Joint Affidavit of Irretrievable Breakdown

Separation Agreement (notarized and signed by both parties)

Request For Pretrial

Notice Of Appearance(s)

Financial Statements

Affidavit Disclosing Care or Custody Proceeding(s)

Marriage Certificate (certified)

Parent Education Certificates

Child Support Guideline Worksheet

Certificate of Absolute Divorce (R408)

Money Order for $220.00 (payable to register of the probate court)

Uniform Counsel Certificate/Form