Answers to Questions You Forgot to Ask About Divorce Mediation

Do we have to live separately to file for divorce?
No, you do not need to live separately in order to file for divorce.

Do we have to go to court in order to get a divorce?
Yes, even if you are filing a no-fault, noncontested divorce (No Fault 1A), you and your spouse have to appear before the judge who has received a copy of your Agreement in advance of the hearing. It is the judge who is empowered to grant or deny your divorce based on his/her evaluation of your Agreement and its adherence to Massachusetts law.

Do we have to sell our home in order to divide property?
No, there are many approaches to the division of marital property as it relates to the marital home. The options may include:

• One spouse resides in the house with future sale tied to an event and/or date (e.g., the emancipation of the youngest child). The sale proceeds are then divided in accordance with the terms of your Agreement.
• One spouse buys out the other spouse’s interest, in full, at the time of the divorce or at a later date (e.g., emancipation of children) or through trade of other assets (e.g., one keeps the house and the other receives retirement funds).
• A combination agreement of a partial buyout through refinancing at the time of divorce or with other assets and the balance of moneys owed at a later date or in installment payments.

Do we have to divide all other assets at the time of divorce?
No, here too, as with the marital home, the couple may decide to keep some assets jointly with terms specified as to what will happen in the future, and/or divide certain assets and retain others for later division.

Can we ignore Massachusetts Child Support Guidelines if we agree?
No, the parties cannot just ignore Massachusetts Child Support Guidelines without the presentation to the Court of an Application for Deviation from Child Support Guidelines. In the Application, the couple needs to present a persuasive argument as to why the support proposed by the couples would be in the child’s best interests and/or would prevent an unjust result if used in accordance with the formula.

Do All Couples Have An Alimony Agreement?
No, alimony, in accordance with the Act Reforming Alimony in The Commonwealth (November 2011), is based on the following definition of Alimony:

“The payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.”

Terms pertaining to need and length of time vary, as do considerations and terms related to the termination and/or adjustment of alimony prior to the expiration of the alimony payment period. Alimony payments used to be deductible to the payor spouse and taxable to the recipient spouse. As of January 2019, alimony is no longer tax-deductible to the payor spouse. The recipient receives the money without any tax implications.