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Lawyers are often accused of making people “distrustful of words.” At the Law Offices of Christopher Carbone, our goal is to empower you with knowledge and make you feel confident and informed about the process, and not to make you feel powerless in the face of the unknown. Below are just a few terms that you may come across in your divorce.

  • Contempt

    In Massachusetts, Contempt is defined as the failure of a party to abide by an unambiguous order of the Court. In other words, if the Court has made a ruling, or if the court has entered an agreement of the parties (ie: a stipulation, see below) and if one party fails to follow that clear order, the non-offending party can bring a Complaint for Contempt. Examples of Complaints for Contempt are failure to pay child support; failure to pay alimony; failure to follow an agreed visitation schedule, and failure to cooperate in making decisions for a child (ie: where the child will go to college).

  • Custody, Children

    When a couple is divorced and there are minor children, usually what will occur is that both parties retain legal custody of the children, while one party will retain physical custody. Legal custody means that both parties- regardless of location -retain the right to make all decisions for the children, including schooling, medial care, religious observations, etc. Physical custody means only where the child lives most of the time. A parent who lives with the children most of the time is said to be the “custodial parent” while the parent who has scheduled visitation time is called the “non-custodial parent.”

  • Divorce, Fault

    There are two types of divorce actions in Massachusetts. The first, and far less common, is a Fault Divorce or what is more commonly known as a Divorce for Cause. What that means is that one party is claiming that the other party did something that lead to the dissolution of the marital relationship. Under Massachusetts Law, there are 1) Adultery, 2) Impotence, 3) Desertion (must be at least one year), 4) Gross and confirmed habits of intoxication, 5) Cruel and Abusive Treatment, 6) Refusal or Neglect to Support and 7) Incarceration (must be for five years). Divorce for Cause has little advantage over a No-Fault Divorce, as it is usually harder to prove that the reason for the marriage’s dissolution was the cause cited; its usually more expensive and there is a significant chance children of the marriage will be negatively impacted by the process.

  • Divorce, No Fault

    The second of the two types of divorce actions in Massachusetts is called “No Fault Divorce.” Under this avenue of divorce, one party simply claims that the marriage has “irretrievably broken down” and there exists no hope of reconciliation. The party need not prove that one party is at fault or to pin-point exactly why the marriage dissolved. All they need to state is that the marriage has broken down. The parties still must decide all issues involving child custody, visitation, property division and alimony, or have a trial and have a court decide those issues. However, a No-Fault divorce provides a far more elegant means of ending a marriage without the morass of blame.

  • Modification

    Things change. Sometimes even after the parties have made an agreement, the agreement, at some point in the future, stops making sense. Take for example a divorced couple with two children, and the father is paying significant child support. What happens if the father looses his job? The father could file a “Motion to Modify Child Support” and ask to decrease his child support obligation to reflect his new income reality. Conversely, if the father took a far better job making more money, his spouse could file a Motion to Modify Child Support asking the court to increase the father’s obligation. A Motion for Modification allows the parties in a divorce to change their agreement to reflect the changing dynamics of their lives.

  • Prenuptial Agreement (“Pre-nup”)

    A prenuptial agreement is an agreement between two people in anticipation of marriage that deals with the financial consequences of their marriage ending. Many people, now more than ever, are planning ahead and making accommodations in the event that their marriage does not last. While Prenuptial Agreements are a good idea for most couples, couples where one party has more assets or earns more money should seriously consider this avenue. This is also good for couples where one party (or both) is on their second marriage and already has a family to consider; couples where one party has a high amount of debt, or where one party owns his or her own business. Prenuptial Agreements are a very good tool in taking much of the misery and financial uncertainty out of divorce.

  • Restraining Order

    A restraining order is a court order that is intended to provide victims of domestic, physical, or sexual abuse with legal protection by providing criminal and/or monetary penalties for a violation of the order. In Massachusetts, a restraining order is also referred to as a 209a protective order, or abuse prevention order. Restraining orders can be obtained from the District Court, Probate and Family Court, Boston Municipal Court, Superior Court (except for dating relationships).

  • Separation Agreement

    When two parties reach an agreement on all of the terms of their divorce, they draft what is called a “Separation Agreement.” A Separation Agreement covers everything from the division of property to custody of the children, alimony, visitation, etc. This Agreement is made by the parties, not the Court, and in this way the parties control all aspects of their post-divorce life. The parties then ask the court to enter the agreement as an order of the Court, and the court will unless it finds a portion of the Separation Agreement to be unfair and/or unreasonable.

  • Stipulation

    Sometimes, the parties to a divorce agree to one or more issues facing them at one time. Instead of going to court to argue one party’s point of view over the others, the parties agree on a course of action and then ask the court to enter their stipulation as an Order of the Court. A good example of a stipulation would be if the custodial parent asked the non-custodial parent for an increase in child support and the non-custodial parent agreed. The two parties would write their agreement as a “Stipulation” and the Court would agree to enter it as an order provided the order was fair and reasonable.

  • Temporary Orders

    When a divorce action is in progress, but not yet completed, a party may ask the court for orders that will be in place until the divorce is concluded. Temporary Orders usually include deciding on child support, where the children will live, visitation etc. What must be remembered is that Temporary Orders are only Temporary and will be ended either when the parties enter into a Separation Agreement or if the court enters a Judgment of Divorce and makes findings after a full trial.