Advanced Legal Research
Pathfinder: Divorce Law in Massachusetts
TABLE OF CONTENTS
Divorce law in Massachusetts covers more than just fault and no-fault dissolution of marriage. In fact, there are many interrelated topics such as: property division, spousal support, child custody, child support, visitation, and medication. The topics that encompass divorce law in Massachusetts are primarily governed by statute. The statutes provide standards under which a judge (never a jury) is to decide the outcome of each case. Since the standards are to be weighed on a case by case basis, they were drafted in fairly vague language. Cases, therefore, are important to illustrate the meaning of the standards and provide a scope of its reach. Note that Massachusetts is not a Community Property state, so every asset held by the divorcing couple is considered in the division of property, alimony, and child support determination.
Statutes primarily govern divorce law in Massachusetts. The most important statutes are those in G.L. c. 207 – c. 210.
- Suffolk University has a pathfinder that covers
family law more generally. It focuses on the statutes governing family law and secondary authorities. Suffolk’s pathfinder is relatively short,
so it is a quick guide to this area of the law.
- State Law Library - There are a few pathfinders at this site. While each does not specifically deal with divorce law per se, it does
provide information on interrelated issues, such as: domestic violence, adoption, grandparent’s visitation rights, and emancipation of minors.
- Western New England School of Law has posted a list self-help
guides that discuss many areas of law, including Domestic Relations.
- G.L. c. 207 – covers Marriage. While the focus of this pathfinder is divorce law, a couple needs to be married before they can divorce.
Ensuring that the elements of marriage are met is an important first step in moving for a divorce.
- G.L. c. 208 – covers Divorce. This chapter is the most important of all. The significant sections in this chapter include:
- §1, §1A, and §1B which describe the causes of divorce;
- §28 which discusses child custody; and
- §34 which contains the factors used to determine alimony.
G.L. c. 209A – covers abuse prevention orders. If domestic violence is an issue, this chapter is important to use to obtain
a restraining order.
G.L. c. 209B – is the Massachusetts version of the Uniform Child Custody Jurisdiction Act. The Massachusetts version is much
different than the Uniform Act, so reading the terms closely is important. This chapter is important when the parties to a divorce dispute
over where the custody proceeding will take place, in another state or foreign country. The court must make two evaluations, the first under
§2 and the second under §7.
Statutes In Print
- The official version is titled General Laws of Massachusetts.
- The unofficial and annotated print versions are published by West in Massachusetts General Laws Annotated, and by Lexis Nexis
in Annotated Laws of Massachusetts.
Every four years Massachusetts re-writes the Child Support Guidelines (most recent being February 2006). The Guidelines are forms that
the courts must use to determine the child support order. It considers income from both parents and other factors. The court can only
deviate from the Child Support Guideline if the income of one or both the parents is above a certain amount. The guidelines can be found at:
Generally online sources of the guidelines are best because you can be sure that you have the most current version. In addition, the online sources allow you to type the information directly into the form and print it.
- The Massachusetts General Court website has an un-annotated version.
- Annotated versions of the statutes can be found on Westlaw or Lexis Nexis. In Westlaw, you can search by keyword in the
MA-ST database, by citation, or in the table of contents for Massachusetts Statutes.
Generally, it is difficult to locate a seminal case in this field of law. For the most part, case research is aimed at defining the scope of the standard set forth in the statutes. The best place to find relevant cases is in the annotations of the statutes, or in secondary sources. Nevertheless, the following cases are a few of the important ones in Massachusetts divorce law:
To find cases relevant to your topic, you can search West’s Digest or online at Westlaw or Lexis Nexis. In the Digest, the Descriptive Word Index lists “Divorce”, and there are many subtopics under this category. Online at Westlaw, you can limit your search to Massachusetts family law cases database, MAFL-CS. The relevant key numbers include:
- Rosenberg v. Lipnick, 377 Mass. 666 (1979) – discusses the validity of a pre-marital agreement.
- DeMatteo v. DeMatteo, 436 Mass. 18 (2002) – discusses the validity of a pre-marital agreement, focusing on the court’s required second look standard
- Drapek v. Drapek, 399 Mass. 240 (1987) – discusses and applies the alimony factors and the broad reach the court has with property division
- Knox v. Remick, 371 Mass. 433 (1976) – discusses the validity of a separation agreement as an enforceable divorce decree
- Hersey v. Hersey, 271 Mass. 545 (1930) – discusses the best interest of the child standard for determining child custody
- Umina v. Malbica, 27 Mass.App.Ct. 351 (1989) – discusses the Massachusetts Child Custody Jurisdiction Act
- Goodridge v. Department of Public Health, 440 Mass. 309 (2003) – permits same-sex marriage in Massachusetts. Same-sex divorce is a hot topic in Massachusetts family law.
The Probate and Family Court in Massachusetts has its own set of procedure rules, titled Domestic Relations Rules of Procedure. These rules are largely modeled after the Rules of Civil Procedure. These rules can be found at:
- 76D for child custody
- 76E for child support
- 134 for divorce
- 205 for husband and wife
- 285 for parent and child
Westlaw and Lexis under Rules of Court in the Massachusetts database.
There are many secondary sources available on divorce law in Massachusetts. Here are some of the more useful and comprehensive sources. I list them in no particular order:
Massachusetts Practice Series – available in print in the New England Law Library reference section, or online at Westlaw. The relevant sections include:
- State Law Library
Generally anything authored by Charles P. Kindregan or Inker are good sources. For example:
- Volume 2 and 2A: Chapters 26-56 – covers the substantive law aspects of divorce law
- Volume 5A: Chapter 30 – covers the practical aspect of divorce law, with forms and checklists for practitioners
- Volume 9A: Chapter 47 – covers the proceedings involved in a divorce, the course of litigation
- Volume 17B: Chapter 55 – covers the prima facie elements that a plaintiff and defendant need to meet
- Domestic Relations Rules and Statutes Annotated (1999) – published annually by West. This treatise includes rules of domestic procedure, relevant statutes, support guidelines, some illustrative cases, and some federal statutes. This treatise is on reserve in the New England Law Library.
Family Court: Judicial Forum – there is an annual version of this publication, the most recent being 2006 (Call # KFM 2494.5. Z9 F359 2006). These volumes provide reviews of recent cases and issues dealing with family law topics. More importantly, this volume publishes answers that Massachusetts Family and Probate Court judges give to certain questions. For incite on how a judge will rule or how they prefer you to present information you may want to take a look.
- Massachusetts Family Law Citator (2006), by Phyllis E. Federico and Richard D. Packenham. (On reserve, Call # KFM 2494 A59 P32 2006) This book has been published almost annually since 2000. This source basically lists case names, citations and a brief description of the holdings for cases in Massachusetts dating from 1974 – April 2006. This source opens with a list of all the cases included, for quick reference. It then organizes the cases by topic, the topics are arranged alphabetically, and each case within the topic is listed chronologically. There is a topic index in the back of the book. As an alternative to West’s key number system, this volume can provide case citations and brief descriptions of the most recent Massachusetts family law cases.
- Massachusetts Family Law Source Book (2006), by Michael L. Leshin. (On reserve, Call # KFM 2494 L47 2006) This has been published almost annually since 1998. This book is a comprehensive collection of evidentiary issues, Massachusetts statutes, Domestic Relations Rules of Procedure, Child Support Guidelines, Court Standing Orders, and relevant federal statutes. The sections included are partially annotated. There is a very good table of contents and index to help you navigate the book.
- Before the “I Do’s”: Pre-Marital Agreements, by Peter F. Zupcofska. (Call # KFM 2495 Z9 B44 2006). If a pre-marital agreement is at issue in a divorce case, this text is very helpful because it provides a review of the relevant cases for pre-marital agreements. It also helps if you are drafting a pre-marital agreement.
- Handbook of Massachusetts Family Law 4th Ed., by Gerald D. McLellan. (On reserve, Call # KFM 2500 .M3 1999, with a 2002-2003 supplement) This book, while dated, has proved its worth as a reference book. It covers Jurisdiction, Venue, Pleadings, Service of Process, Motion Practice, Abuse Prevention, Uniform Reciprocal Enforcement of Support Act, Separate Support, Bankruptcy, Annulment, Divorce, Discovery, Contested Actions, Trial Tactics, Alimony and Support, Judgments, Appeals, Tax, Custody, Visitation, Paternity, Contempt, Modification, Ante-nuptial Agreements, and includes the Domestic Relations Rules of Procedure. Each chapter opens with an overview of the topic it intends to cover, provides statutes and relevant cases. The benefit of this book is that it provides primary authority and practice pointers. There is a comprehensive table of contents, table of cases, and index to help navigate.
- Massachusetts Divorce Law Practice Forms, edited by Ruth R. Budd and Peter F. Zupcofska. (On reserve, Call # KFM 2500 A65 M37 2000) Even though this source is published by MCLE, I should categorize it as a practical guide because this loose leaf manual provides a great deal of example forms. There are forms that an attorney will need for court, and for his own practice Including: an overview of the Probate and Family Court System, forms for an initial client interview, explanation of decisions that need to be made after the interview, and example forms for mediations, motions, financial statements, discovery, division of assets, alimony, child support, pretrial hearings, marital agreements, valuations, experts, retirement assets, trial practice techniques, modification, contempt, tax considerations, premarital agreements, and health insurance. A practicing divorce lawyer would find this source very helpful because it combines a variety of topics into one comprehensive source. This source also comes with a disk, which avoids the usual problem associated with print form books, re-typing the form into the computer. There is a very good table of contents that allows the reader to navigate the text.
- Massachusetts Divorce Law Practice Manual, edited by Ruth R. Budd and Peter F. Zupcofska. (On reserve, Call # KFM 2500 M372 2000) This source coincides with the one immediately above. It is organized in the same manner as the one above; as a loose leaf, with the same topics organized under the same chapter numbers. Unlike the source above, however, this one covers more of the substantive law and gives practice pointers. There are case and statute citations. The table of contents is very good to navigate the text.
- Massachusetts Family Law Journal – (Stack 197) This source is a periodical published bimonthly. It features articles by Massachusetts practitioners, judges, and law students, concentrating on a variety of current family law topics. In addition, it provides the full text of significant trial court decisions and summaries of selected trial and appellate cases. These decisions are not generally published anywhere else. Some use the family law journal as an indicator of the court's tendencies. Each issue is roughly 20 pages. There is a table of contents at the beginning of each issue. The library has issues from 1983 to present. This source is also available on Lexis Nexis, for key-word searching.
- Massachusetts Lawyer’s Weekly – This source is not specifically geared toward divorce law in Massachusetts. However, it is a valuable source to keep up-to-date with recent cases. You can set up a weekly e-mail alert which allows Massachusetts Lawyer’s Weekly to send a description of the recent family law cases decided by the SJC and the Appeals Court.
The right path to follow when researching divorce law in Massachusetts depends on your available resources and expertise in the field. I generally do the following:
- State Law Library - there are electronic forms that you can fill in and print out. The available forms online include divorce complaints, contempt complaints, modification complaints, child support guidelines, and financial statements long and short.
- Basics in Family Law, by Deborah M. Faenza, Esq. (Call # KFM 2500 Z9 F34 2004). This book is published by MCLE and includes many example forms. The good thing about this book is that it also explains how to fill out the forms.
- West E-Forms. On Westlaw, under the Massachusetts Tab, there is a database for Massachusetts State Court forms. By doing a keyword search you can pull up various forms, such as divorce complaints and financial statements. The forms come up as a PDF that can be filled in and printed.
- Motion Practice for the Family Lawyer, published by MCLE. (On reserve, Call # KFM 2494 A65 M68 1998). This book provides a fact pattern and a sample motion on almost every issue that may come up during a divorce case. In addition to the sample motion forms, there are explanations of the rules and intent of the motion, and citations to statutes, court rules of procedure, and cases. A handy example book if you are writing a motion for trial. The table of contents is very helpful.
- Massachusetts Family and Probate Court websites offer fill in forms and practical advice. The websites that are sponsored by Mass.gov are not that good, but some districts put out their own websites which are very helpful. These include:
- Start by looking in the Massachusetts Practice Series to get background information and citations to cases and statutes.
- From there, I proceed to read the relevant statutes. I try to get the rule I need to apply, and more case citations from the statutes’ annotations.
- Finally, I would pull all of the cases that I found in the annotations and secondary sources. I would then Shepardize or Keycite the ones I liked, and then try to use these to find additional cases by using the headnotes, key numbers, or Keycite references. A keyword search in the Massachusetts Family Law Cases database is also a good way to find additional cases.