Monthly Archives: May 2015

How Fast Can I Get A Divorce If I Can’t Locate My Spouse?

Respectfully, you seem to be a bit confused about the process involved in the dissolution of a marriage.  Lets start with: you cannot get a divorce if you cannot locate the other party. To begin the divorce process you must file a Complaint for Divorce with a court of competent jurisdiction (in Massachusetts, a Probate & Family court in the county where at least one of the parties resides).  The Complaint must be filed and SERVED on the other party.  Proof of service must be filed with the court. The court will then schedule a hearing (anywhere from 30 – 60 day later). But that is only the beginning…

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The fact that you “have no assets TOGETHER” is not controlling, since under MA law, ALL ASSETS of BOTH parties (whether held in joint title, owned before the marriage, acquired during the marriage or owned individually) are subject to distribution at the time of dissolution of the marriage.

Your first concern must be to locate the other party.  If he or she cannot be found and served, no court will allow the divorce to proceed–its a Constitutional requirement.

If the divorce is uncontested (which you cannot determine at this point because you have not conferred with the other party) the parties can file a joint petition for divorce, file an Agreement to be incorporated into the judgment of divorce, etc., that settle by stipulation all the issues the court will require be addressed in order to be satisfied that all the issues have been resolved by the parties voluntarily.  If the the other party objects (to either the divorce itself or any of the proposed terms) the matter will have to be litigated in court.  There are innumerable permutations that can occur if the other party objects.  Notwithstanding the fact that today parties have the option of filing under “irretrievable  breakdown of the marriage”  –essentially a “no fault” provision, marriage is a special type of contract and the State and the Court take the dissolution very seriously. A judgment of divorce can be entered anywhere from 60 days to several years after the action has been commenced.

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What is a “Motion” and How Do You File One in the Family Court?

The question was put to me: What do I say on the motion form provided by the court when it asks “Motion For ______________”?

I’m going to assume you are a layperson (nonlawyer) trying to file something in court “pro se”–that is, on your own and without a lawyer.  A bit of civil procedure rules are required here: You can only file a “motion” when a case is already before the court; so if you do not have an active case (still being litigated and there has been no judgment entered), you must start an action by filing a Complaint. In the Probate & Family Courts of Massachusetts, this may be a Complaint for Modification [of an existing Order or Judgment], a Complaint for Contempt, A Complaint for Custody/Visitation, a Complaint to Establish Paternity, A Complaint of [Child] Support, a Complaint for Divorce, etc., to start a judicial review of your concerns. This is subject to all the rules of procedure controlling service and filing to commence an action. (See Mass. Rules of Civ Pro, Rule 4; http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp4.html)  Then, once the action has been commenced, served and joined, either party (Plaintiff or Defendant) can proceed to make Motions.

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A “Motion” is so called because the party is seeking to “move the Court” in the direction of granting an order. It is “persuasive writing”, and typically will include not only a request for the [temporary] relief sought, but will be accompanied by a sworn affidavit from a personal with actual knowledge of the facts, upon which the Court may rest its decision.  Typically, the moving party (also called the “movant”) will attach exhibits and further evidence in support to the moving papers.  A motion can be made for almost any imaginably  relevant request for interim relief (that’s why “motion practice” can be tricky and complicated). Any request made to the Court or regarding the proceedings is made by motion; so, a motion to continue the hearing (adjourn to another date), a motion for temporary orders, a motion to be relieved as counsel, a motion to grant attorney fees –virtually anything– OTHER THAN THE ULTIMATE QUESTION  reserved for judgment, can (and must) be requested of the Court by “motion”.

A further civil procedure note here: service of motions must be in keeping with the statutory time to serve upon opposing party before a hearing date–typically ten days–in order to allow the respondent to file and serve a written response, if they so choose.  All motions must be filed, calendared for hearing before the Court and served on all parties.  Proof of service of the moving papers must be filed with the court. All motions will be heard before the Court, with both sides present and given an opportunity to address the issues, for and against, before a decision will be rendered by the Court. A last note here: Motion practice is used in both civil and criminal proceedings, but of course, criminal case motions follow the rules of criminal procedure not covered in this discussion.

Decisions on motions are usually of a temporary or interim nature; they may be modified, vacated or over ruled in the Final Decision and Judgment of the Court. However, decisions and orders on motion may also be incorporated into the final judgment–and they often are!

To answer your question specifically, the “Motion For” on the motion form is followed by:   whatever you want from the court, e.g. Motion to Continue the hearing, or motion to waive appearance, a motion for temporary custody…you get the picture. In the scenario presented in your fact pattern, you would file a Complaint for Modification [of Custody/Visitation], then file a Motion for Temporary Orders [to change the visitation schedule], and “such other and further relief as the Court deems appropriate”.

While I know there is a  trend in the courts to encourage self representation, and the courts have tried to streamline and simplify procedures, Family Court matters are serious, and should not be undertaken by inexperienced pro se litigants, anymore than a layperson should try to build their own house.  Consult with attorneys (plural) and retain counsel to structure your position in a light most favorable to the court and to help you navigate through these complex procedures and rules of court.

Respectfully submitted,

Estela Matta, Esq.