Most states have some kind of residency rule that restricts a couple from filing for divorce if they haven’t spent enough time in the state. In fact, there are only three states, i.e. Alaska, South Dakota and Washington, that don’t have some kind of residency minimum period for divorce. In Massachusetts, the rule for most divorces is that you have to have been living within the state continuously for a period of 1 year immediately before you can file for divorce. The residency rule was designed to prevent people moving to Massachusetts from another state solely to file for divorce.
The state’s residency rules are a little confusing, so if you, or your spouse, are planning on filing for divorce, you should make sure you understand the residency rules before filing your complaint. Ask a divorce attorney to help you work out whether you can file for divorce in Massachusetts straight away, or whether you have to wait for a period of time, or whether you need to file for divorce in another state or jurisdiction (e.g. in another country if you are not U.S. citizens).
Reasons for the divorce do not affect the residence requirement
Divorce is the legal recognition of the ending of a marriage. Because divorce is a legal matter, it must follow the rules laid out in the state where the divorce is to take place. Massachusetts, like all other states, has what are called no-fault divorce rules. In a no-fault divorce, the couple decides that the relationship has irretrievably broken down, but neither spouse is blamed in particular for the breakdown. This is the easiest and most common type of divorce, but it may also be contested or uncontested.
An uncontested no-fault divorce is one in which both spouses have agreed on the most important decisions that need to be made before ending a marriage. A signed separation agreement that details how marital assets are to be divided and arrangements for child custody, spousal and child support is the main requirement before a Massachusetts court will proceed with a divorce.
A contested no-fault divorce is one in which the couple agrees that there has been an irretrievable breakdown in the marriage, which is not either of the two spouses particular fault, but there is no agreement on how to resolve the decisions needed to be made before divorce.
Massachusetts also recognizes fault divorces. These are when one of the spouses alleges that the reason for filing for divorce is because of the fault of the other spouse. The state recognizes seven reasons for a fault divorce, including:
- cruelty;
- desertion;
- gross intoxication;
- impotency;
- 5 or more years in prison;
- adultery;
- failure to support.
Whether you opt for a no-fault divorce or a fault divorce, the state’s residency rules require the plaintiff to have lived continuously in Massachusetts for 1 year before a divorce can be filed if the cause of the divorce happened elsewhere, i.e. in another state or overseas.
The residency rules change if the cause of the divorce happened within the state. Then, the plaintiff can file for divorce straight away as long as the couple was living together as a married couple in the state and the plaintiff was living in the state at the time of filing.
Examples of how the residency rules may apply
Take a couple, Bob and Mary. Bob and Mary were married in Massachusetts previously, but moved out of the state for jobs. They were living in New Hampshire when they felt that their marriage had broken down irretrievably. They decide to separate and Mary then goes back to Massachusetts where she was brought up and still has family. Because the cause of the divorce, despite it being a no-fault divorce, happened outside of the state, Mary must live in Massachusetts for a continuous period of 12 months before she can file for divorce.
Meanwhile, another couple, John and Elizabeth, were both living in Massachusetts when John found out that Elizabeth had been having an affair with another man. In this case, John can file for a fault type divorce based on adultery without having to prove that he had been living in the state for the 1 year residency period, as long as he was actually living in Massachusetts when he filed.
The location in Massachusetts does not matter when it comes to residency requirements
If a plaintiff in a divorce must prove that they have lived in the state for a year before filing, it does not matter whether they stay in the same place for the whole period, or whether they move around the state. What does matter is whether they move out of the state for a period and then move back again. This would invalidate the residency requirements.
After filing for divorce, i.e. after divorce papers have been placed with the appropriate court in Massachusetts, the residency requirements no longer matter. For example, say a couple has been living in the state for the minimum period necessary to file for divorce, i.e. a year if the reason for the divorce happened elsewhere, then they both, or one of them, can move outside the state afterwards. They don’t have to wait until the divorce has been officially been granted by the court.
Separation is not required by Massachusetts before divorce
In some states, a couple must have been separated for a minimum period before one of them can file for divorce. This is not a requirement in Massachusetts.
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