No. You have an equitable right to the marital home, whether you are currently living there or not. Your physical location is not relevant. However, if you wish to retain the marital home as part of the division of assets, it is an easier task to accomplish if you are still living there. A party who moves out may find it difficult to persuade the court, if the issue comes down to who keeps the house. However, if you do not wish to remain living in the house after divorce, moving out does not waive your right to your share of the equity in the marital home, for a buyout.
If there are children involved, it is preferable to establish a temporary parenting schedule in place before you move out, if at all possible, such that your leaving is not construed to be leaving the children behind, and so that you continue to have control over when you have parenting time with your children. If the parties cannot agree on a temporary parenting schedule before physical separation into two households, a motion for temporary orders may be filed, and the issue will be addressed with the Court. Unless there are significant safety concerns for the welfare of the children, the Courts encourage parenting time with both parents as much as possible. It is best to consult with counsel before moving out, if possible.
Not without a court order. However, there are circumstances where a party can request that the court order the other party to vacate the marital home, under the following circumstances: 1) application for a restraining order, where the court must find that the party seeking the restraining order has demonstrated a fear of imminent bodily harm by the other party or 2) a motion to vacate the marital home, where the court must make specific findings that the health, safety and welfare of the party seeking the order would be harmed if the court did not order the other party to vacate. It is the moving party’s burden to demonstrate this standard, and the court may only order a party to vacate under these circumstances for a maximum of 90 days, and further hearing is required to extend such an order.
If the parties cannot agree on how to divide the marital home (either one party retains the home and buys out the other party’s equitable share, or the parties agree to sell the home) then the case will go to trial and the judge will determine what is to happen with the home. The court will decide whether one spouse is to retain and buy out the other spouse, or whether the house is to be sold.
Yes, your retirement and pension are marital assets and subject to division. By statute, M.G.L. c. 208, section 34, the court considers seventeen separate factors in determining how to divide the marital assets, including but not limited to each party’s contribution to the maintenance of the marital home and the marital estate, both financial and non-financial, as well as each party’s ability to acquire future assets. Consult with counsel to explore the specific facts of your case and how your retirement may be subject to division.
No. All assets are considered part of the marital estate and subject to potential division, regardless of whether they are individual accounts that are not co-mingled. Even if the parties never joint their bank accounts together, all bank accounts are marital assets.
Conduct is not generally relevant to asset division or the determination of support. Financial misconduct would be relevant, such that if a spouse mishandled marital funds or assets, for example, by gambling away $50,000, or spending thousands of dollars on an alcohol or drug habit, or utilizing significant marital funds toward an extra-marital affair, the court will consider such misconduct in making an equitable division of the assets taking those financial misappropriations into account.
By contrast, a contested divorce make take one year or longer. Contested divorces are placed on a fourteen-month track by the Court, and a pre-trial hearing does not take place less than six months after the complaint is filed. That is, by statute, the parties cannot obtain a divorce inside of six months from the date of filing —however if an agreement is reached, the parties may convert the 1B contested divorce to an uncontested divorce by filing an Affidavit of Irretrievable Breakdown and requesting an uncontested hearing date.
Once the matter is settled and the parties have reached agreement, they may choose to then hire me to draft the agreement of terms (the “Separation Agreement”) the parties’ financial statements, and several other pleadings required for filing. This is a separate flat fee of $1,000 (Representing about 4 hours of legal work). Once the flat fee for drafting is paid, I will commence drafting the agreement and pleadings. That is the last fee that will be paid by the parties. The Court filing fee for an uncontested Joint Petition for Divorce is $215 which is paid at the Clerk’s office at the time of filing.