Frequently Asked Questions
When should I see a lawyer?
As soon as possible. It is never too early to see a lawyer. Going to see a lawyer does not mean you are filing for divorce. The initial office consultation with a lawyer should be an educational process—to learn about your rights, your options, costs, timetable, expected results, and how to protect yourself for the time being.
The timing of a divorce, and the decision about whether to seek a divorce at all, is a personal decision that should be made only by the parties involved. However, it is often helpful in making those decisions to be educated about your rights and obligations. Most everything that you discuss with your lawyer is confidential. The earlier you see a lawyer, the less chance there is of making mistakes that might prejudice your rights during the divorce process.
Should I get a divorce?
Barring any emergency circumstances, the decision to divorce should not be rushed; instead it should be made at your own pace and time. It is an intensely personal decision, and an important one. If a person is unsure as to what to do, he or she should seek the advice of a skilled therapist to provide guidance and assistance.
If I file for divorce, does that mean I have to have a trial?
No. The “filing” of a divorce is only an initial step, and the process of a divorce could take a year or two or longer. Most divorce cases settle without a “trial”; very few cases are actually “tried” to a conclusion in the Courts. It is generally advantageous to parties to settle their own differences amicably and create a tailor-made agreement that goes into much greater detail than a Judgment by the Court following a trial. It is almost always economically advantageous and emotionally beneficial for parties to settle their differences by agreement rather than at trial. If there are children involved, the benefits of reaching an agreement are even more significant.
How do I go about choosing a lawyer?
Talking with friends or family members who have been through a divorce can often lead to suggestions about who to choose for a lawyer, and even more importantly who not to choose for a lawyer. There should be a comfortable “fit” between client and lawyer, philosophically and otherwise; a client needs to have confidence in his or her lawyer. Cost is another consideration, and legal fees should be discussed with counsel at your initial meeting.
Clients should trust their own instincts when they meet with a lawyer. If a client is uncomfortable at the initial meeting, they are likely to become even more uncomfortable throughout the course of the divorce process since it is emotionally taxing. Clients often mistakenly believe that if they are represented by the most aggressive lawyer, they will “win”, when in truth, having the most aggressive lawyer is often an impediment to obtaining a fair settlement of a case (and can unnecessarily increase the costs). The decision about who to choose for a lawyer is an important one as it will set the tone of the case. An attorney’s reputation in the community as a knowledgeable and skilled attorney who settles most cases is generally the most desirable.
What options are available to me to reach an agreement (or to settle my case)? (mediation, collaboration)
There are numerous options available for resolution of a case in addition to the traditional Court process—collaborative law, mediation, arbitration, conciliation. There is no requirement that either party be represented by counsel, but it is certainly advisable. There are only two ways that a divorce occurs—either by agreement of the parties, or a trial of the case. These options should be explained to you at an initial meeting with an attorney. Since collaborative law requires that both parties be represented by attorneys who are trained in collaborative law, you may wish to seek the advice of an attorney who is trained in collaborative law for an initial meeting to explore whether or not this, or other options, are advisable. The attorneys at Ryan Faenza Carey are trained in collaborative law. Our firm can also facilitate mediated divorces.
How much does a divorce cost?
Generally, attorneys in divorce matters charge on an hourly basis, and require a retainer at the start of a case. There is a very wide range of costs involved, as a case could take a few days, or a few years to complete. It is seldom possible to determine the “cost” of the case at the outset of the case. The amount of legal fees that are charged is most often dependent upon the amount of work required to be done. If an overly aggressive or unreasonable attorney is engaged by one party, the costs of the divorce for both parties can be doubled or tripled unnecessarily. A seasoned lawyer should attempt to minimize the legal costs involved for the client, without compromising the rights of the client in a balanced effort.
What if everything is in my spouse’s name?
In Massachusetts, “title” to assets is not critical to the outcome of a case. The Court has the authority to order assets owned by one party to be transferred to the other party as part of a divorce or property settlement. Who has title to an asset can sometimes be significant in that the owner has “control” over the asset until a Court determines disposition of that asset. Just because everything is in your spouse’s name does not mean that you have no rights. There are numerous factors, some of them complex, that determine how property is to be divided.
What happens to my children?
The best interests of your children are of paramount importance in determining what types of custodial arrangements and parenting plans will occur. There is a presumption that both parents should be involved in the children’s lives as much as possible, absent evidence that there are safety or other relevant concerns. History of parenting, skills of the parents, the age and needs of the children, the limitations on parenting by virtue of working or medical or other issues are all proper areas of inquiry in determining the best interests of the children. The most successful cases involving children are those where the parents can agree as to what is best for the children, even if they are unable to agree upon monetary arrangements or property division. Parents who put the children’s needs ahead of their own needs, are to be applauded, as studies have shown that conflict between parents is the most difficult part of a divorce for children.
In June of 2014, attorney Marilynne Ryan and Diana Kierein, Esquire, LICSW published a “little book” called Silver Linings. It contains some very helpful tips on getting though a divorce, especially a divorce involving children. Please consider reading this to help both you and your children weather the storm of divorce. Please go to the site on the home page for additional information about this book.
What about the new alimony law that I hear about?
Massachusetts alimony laws were recently expanded to include many different forms of alimony, the ability to limit the duration of alimony, the presumption that a person should at some point be entitled to retire, changes in amounts of alimony due to cohabitation of a recipient, and other changes as well. The statute is complicated, and difficult to read and understand. Whether you have been married for 1 year, or for 40 years, a skilled attorney should discuss whether alimony is an issue in your case and the impact of this alimony reform at an initial consultation.