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Massachusetts Divorce: 1A's vs. 1B's

    

Written by Dea Ilia Coka, Esq.

If you are reading this blog, you are probably considering divorce and trying to learn more about your options. I won’t sugar coat it for you; divorce is extremely taxing emotionally and psychologically, and the sad reality is that in many cases, it can also be financially debilitating for one or both of the parties. However, the side effects of divorce can be mitigated if you go about it the right way. 

You can relieve at least some of the emotional and financial impact by approaching the situation strategically. So, what are the different strategies of getting divorced and how do you figure out which strategy is right for you? Let’s walk through it!

Getting divorced in Massachusetts

There are two ways to get divorced in Massachusetts based upon “No-Fault” grounds, and both of these ways are governed respectively by Massachusetts General Law Chapter (M.G.L.) 208 §1A and §1B. “No-Fault” divorce means exactly what it sounds like: that, simply, the divorce is no one’s fault. There has been an “irretrievable breakdown” in the marriage, and either one or both of the parties no longer wish to be married to one another. “No-Fault” divorces are the most common way that Massachusetts couples get divorced. There is technically a third way to get divorced in Massachusetts, under M.G.L 208 §1, which is “Fault-Based,” but that is a topic of discussion for another day. “Fault-based” divorce in Massachusetts has become more and more antiquated with time and simply doesn’t make sense in many cases.

1A Divorce: When the Couple is in Agreement

M.G.L c. 208 §1A provides couples who are both on the same page about getting a divorce with a way to mutually get divorced in (theoretically) as little as 120 days from the date of the filing and presentation of the §1A Package to the Court. There is a lot of work that happens before that filing of the 1A package that is not included in that 120 day timeline though, so you do have to be wary of that. This type of filing is ideal for couples who do not have complex child custody issues, communication issues, complex financial assets or compensation packages, etc. The “1A Package” consists of the following items and must be submitted to the Court in its entirety on the day the couple files it and presents it to the Judge for approval:

  • $215 filing fee made out to the Commonwealth of Massachusetts
  • Joint Petition for Divorce
  • Affidavit of Irretrievable Breakdown of the Marriage
  • Certified Copy of the Marriage Certificate
  • Form R-408
  • Signed and Notarized Separation Agreement
  • Financial Statements of the Parties with attached W-2’s or 1099’s
  • Massachusetts Child Support Guidelines Worksheet (if there are children)
  • Original Parenting Class Certificates for both parties (if there are children)
  • Affidavit Disclosing Care and Custody (if there are children)

Again, this is an option that you should only elect if you and your soon-to-be-ex-spouse see (relatively) eye to eye on most things. What does that mean? Well, ask yourself:

  1. Do we both want this divorce?
  2. Are we both relatively civil with one another and able to communicate effectively?
  3. Do we both agree on a parenting plan and schedule for the children? (If you have children)
  4. Do we both agree about child support? (If you have children)
  5. Are we both willing to negotiate an equitable financial asset division?

If the answers to the questions above are “yes,” then a Joint Petition for divorce under §1A is probably the best option for you. Do you need an attorney to file for divorce under §1A? No, however, I would strongly advise that you consult with an attorney during the preparation of the 1A package and have one look over the Separation Agreement before you file and present it to the Court. Failure to do so can result in the judge declining to accept your agreement and will waste a day in Court.

But what if the answers to most of the questions above are no? Then you definitely should consult with an attorney and you should consider filing for divorce under §1B as explained below.

1B Divorce: When You and Your Spouse are Not in Agreement

M.G.L c. 2018 §1B provides a party who wishes to get divorced with a way to file for divorce unilaterally, despite the fact that the other party either does not want the divorce, or is dragging their feet by continuously saying they want the divorce or are in agreement with the terms you negotiate, but never actually do anything to move the process forward.

1B divorces are considered “contested” but this does not in any way mean that they need to escalate or be adversarial. In many cases, I advise clients to file under 1B as a precautionary measure, to make sure that marital assets don’t get dissipated, or to make sure that the process gets started, (as it generally takes at least 9 months to get divorced under §1B--and that is even if all goes well and if the Judge’s calendars permit. Be advised, those are big and unpredictable if’s.)

Unlike 1A divorces, 1B divorces do not require such an extensive package to be filed with the court. However, they do require that the other party be served with the complaint for divorce and the summons. Only one party needs to walk into the courthouse and file the paperwork with the court, and the filing requirements for a 1B divorce are the following:

  • $220 filing fee ($215 for the complaint and $5 for the summons)
  • Complaint for divorce under MGL 208 1B
  • Form R-408
  • Affidavit disclosing care and custody (if there are children)
  • Parenting Class Certificate (if complete--this may also be submitted at a later date)

How do you know whether you should file under 1B? This is an option that would be preferable for any of the following types of relationship situations:

  1. Couples with highly complex child custody or financial issues.
  2. Couples who are high-conflict and do not communicate effectively.
  3. Couples who fundamentally disagree as to parenting plans, styles, schedules.
  4. Couples wherein one party is not willing to negotiate and is stonewalling the process.
  5. Couples wherein one of the parties is “parts-unknown.”

Do you need a lawyer in a 1B divorce? All citizens have a right to represent themselves in these proceedings and very well might have to represent themselves because they are not able to afford a lawyer. However, my advice would be that you retain an attorney to represent you if it is at all possible. If finances are an issue, there are also pro bono services through legal clinics and the court’s “Lawyer for a Day” program who often aids litigants who cannot afford a lawyer through the 1B process. I encourage indigent litigants to take advantage of those resources whenever they can. However, if you can at all afford an attorney I strongly advise that you get one. 1B divorces can get messy very quickly and it helps to have counsel involved on both sides to help guide the process along and keep everything civil.

About the author: Dea Coka is an associate at Todd & Weld, LLP in Boston, MA. She concentrates her practice on family law matters, including divorce, child custody, child support, prenuptial agreements, and asset division.  She represents clients in all phases of family law litigation, including arguing on their behalf in evidentiary and other court hearings, conducting pre-trial discovery, and negotiating settlements. Ms. Coka is a compassionate litigator committed to guiding her clients through what is often an emotionally taxing legal process to achieve the most favorable results.

I hope you found this article useful, and wish you the best of luck in your endeavors!

-Dea Ilia Coka, Esq.

DISCLAIMER: The purpose of this blog is to offer general legal information and opinion and is educational in nature. This page should not be construed to represent legal advice.

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