The Divorce/Custody Process

The point of this page is to give you a roadmap to the overall process so you can have some idea of where you are as you move through it. This is a general overview based on what typically happens. In any individual case there can be many twists, so you should not expect your case to follow this script exactly.

The Beginning

A divorce or custody case starts like most court cases: with a complaint. The plaintiff – that is whichever party gets to the courthouse first – files it and pays a filing fee. The complaint typically just asserts that the marriage is irretrievably broken down and requests division of assets and an award of custody for any children. Like most things in the Family Court, it is a form you fill out, not something you draft. It is still possible to file divorces for "fault" in Massachusetts -- e.g. cruel and abusive treatment or adultery. But that is increasingly rare. Except in the case of abuse, which creates a presumption of custody, there is no real reason to allege fault except to be obnoxious to the other side. Most divorce attorneys will advise against it.

In any case, once the complaint is filed the plaintiff is given a summons and copy of the complaint to serve on the other side, the "defendant." In a divorce case service must be made “in-hand.” That means a constable or sheriff must actually hand it to the other party. In a custody case service can be “last and usual.” That means a sheriff or constable will leave one copy taped to the door of the party's home or business and mail a second copy. In both cases the constable or sheriff fills out an affidavit describing how they served the summons and complaint. That is called a "return of service" and must be filed with the Court. Once that is done the case has officially started. The defendant should file an answer or counterclaim within twenty (20) days of getting the summons and complaint, but the case will go forward whether they do or not. In most cases the defendant will at least file an answer. Unlike in a normal civil lawsuit, failure to file an answer by the deadline generally will not cause the defendant to forfeit the case. There are no “default” judgments, at least at this early stage, in divorce and custody cases. The Probate and Family Court will still look to do justice to all sides and, especially, to any children involved.

It should be noted at this stage that it is also possible to file a joint petition for divorce. That occurs when the parties have already negotiated, drafted, and signed a comprehensive agreement that they want the court to adopt as a judgment of divorce. In that case, the parties can file a joint petition to approve it and get divorced. That process requires only one trip to court by the parties and sometimes the filing and hearing can happen all on the same day. Obviously, those cases tend to be the most amicable and the rest of this overview does not apply to them. One can achieve this happy result in a variety of ways: negotiation between lawyers, working with a mediator, agreeing to arbitration, or just two parties working it out together. It is good to try to reach an amicable agreement if you can, but do not assume that is possible even if both sides want it. Reasonable people can and do honestly disagree sometimes and an agreement cannot always be reached.

The Middle

The next step in most divorce and custody cases is a motion for temporary orders. One or both parties file a motion seeking an order from the court setting the rules the parties will live by while the case is proceeding. That includes issues such as temporary custody of the children, visitation plans, child support, spousal support (a/k/a alimony), who will live in the marital home, and who will be responsible for what bills. Sometimes the parties can enter an agreement as to all these issues and just ask a judge to adopt the agreement as an order. Sometimes it is an agreement on some things and a contested hearing on others. The hearing on temporary orders is typically just an argument by the attorneys (or parties themselves if they are unrepresented) before a judge. The judge will listen, look at the parties’ financial statements (more on that later) and maybe look at a document or two. But in general, he or she will make a decision just based on what is said or written in the motions for temporary orders.

In general, the temporary orders remain in place until the case ends. People do try, and sometimes even succeed, in changing those orders after some period of time. But that is difficult. You should expect your temporary orders to stay in place until at least the next major event in the process: the pretrial conference date.

At the same time that temporary orders are issued the court will typically also schedule a final pretrial conference. The pretrial must be at least six months after the case started. In some counties, thanks to court congestion, it can be more like nine or ten months out. The order scheduling the pretrial will also include orders setting deadlines. There will be a deadline for completing discovery, a requiement that the parties and attorneys meet to negotatiate, in person, at least a week before the pretrial, and a deadline for the filing of memoranda before the pretrial. The pretrial memoranda will include information about what the parties want in the judgment, why, and a list of the witnesses and exhibits that will be used at trial if one is necessary.

The next phase of both a divorce and custody case is the discovery phase. The parties will exchange written demands for documents or written questions. They will sometimes take oral depositions of potential witnesses – that means question them under oath in front of a court reporter who will create a transcript of it. And subpoenas can be used to obtain both documents and people to attend depositions. In custody cases the discovery phase can also sometimes include a court order appointing a Guardian Ad Litem or “GAL.” The GAL is typically a lawyer or social worker who will interview the parties, the children, and other relevant people in the children’s lives (teachers, doctors etc) before writing a report for the court with recommendations about custody and visitation. Another discovery issue can center around the values of certain properties or interests. The marital home and any other real estate is typically valued by a certified real estate appraiser. Businesses or business interests must be valued by experts who specialize in that type of appraisal. That can be very expensive, but if a privately held, and successful, business is the main asset in a divorce the expense is often unavoidable. In short, there are a lot of ways discovery can be done, but the important thing is to do it by the discovery deadline.

The Ending 

The vast majority of divorce and custody cases settle on or before the pretrial date. That is essentially what the pretrial is designed to do. At the pretrial the judge will hear what the parties cannot agree on and their reasons for wanting the case to end a certain way. Then he or she will typically weigh in with an opinion. That opinion is one the parties should, and usually do, take to heart. After all, the judge who hears the pretrial is usually the one who will hear the trial too. It is unlikely the judge will see things differently after spending tens of thousands more on legal fees for a trial. So, often, the parties will take that opinion and spend time in the hallway finalizing an agreement. That often takes hours. If, at the end of the day, the parties still cannot agree the court will typically issue a trial date for many months in the future.

Technically a trial could also commence immediately, on the pretrial date, and in simple cases it sometimes does. The order scheduling the pretrial typically includes a warning that the court reserves the right to order the parties to trial immediately if the issues are simple and can be resolved by the testimony of only the parties. More typically the trial is scheduled for a future date and the parties must go on living under the temporary orders until there is a judgment. Trials can be anywhere from a half-day to several weeks in length, depending on the complexity of the case.

Following the trial, the parties or their attorneys will submit proposed findings of fact and a proposed judgment to the judge. He or she will then draft his or her own judgment and statement of reasons for it. That, usually, is the end of even the most difficult divorces or custody disputes. Usually.

The “Afterparty”

Like any other case, a divorce or custody dispute can be appealed. Appeals are difficult to win in general, but they are especially difficult in divorce or custody cases. That is because the law gives family court judges a lot of discretion to decide factual disputes and the appeals court is reluctant to second-guess them. It does sometimes happen, though, that cases are successfully appealed. And if they are the “prize” is often another trial.

More typically the after-life of a divorce or custody case, if there is one, comes in the form of new litigation between the parties. That can happen with a complaint for contempt or a complaint to modify some aspect of the judgment. A contempt case involves one party accusing the other of refusing to obey some aspect of the judgment. A common example is a complaint saying the other side has failed or refused to pay child support on time. A modification case seeks to change the judgment because something that was true when the judgment was issued has now changed. That "something" needs to be a significant fact that the judgment relied on. A common example is a party seeking to change the amount of child support because they lost a job or because the payor got a much better job. Contempt cases generally resolve quickly, with one trip to court. Modification cases follow the same pattern as the original divorce or custody dispute and can drag on for months or years, through trials and appeals, just like any other case. And, of course, where the parties truly despise each other they can and do file complaint after complaint for years over a variety of issues. You should try to avoid becoming one of those people, for reasons of both sanity and financial security. The reality is, however, that it only takes one aggressive or unreasonable person to create conflict.