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What Does Family Law Cover in Massachusetts?
Family law is a category of mainly civil law that involves relationships or conflicts between members of a family, e.g. spouses, civil law partnerships, children and parents. Family law cases may overlap with criminal law occasionally, e.g. if there are cases of child or spousal abuse, especially if this involves assault. Family law (civil) cases are handled by a Probate and Family court, which is presided over by a judge. There is typically no jury involved in such a court hearing. If you need to have a domestic dispute or issue resolved, you are wise to contact an attorney who specializes in family law. The following cases are some of the most common cases involving family law, although this list is by no means exhaustive.
- paternity resolution;
- child custody;
- domestic violence protection orders;
- name changes.
In general, Massachusetts family law tends to be similar to family law in most other states with some unique variations which will be referred to where relevant in the details below.
Marriage in Massachusetts
You don’t need to go to a probate and family court to get married in Massachusetts unless there is a dispute that cannot be easily resolved about whether a proposed marriage is actually legal. Mass. family law establishes the rules that govern who can get married in the state and how they can make a marriage legally valid. Unless there has been a special exception granted by the family court, marriage partners must be over 18, have lived in Massachusetts for a minimum of 1 year, show evidence of their identity, have documentation available if a previous marriage had ended in a divorce or annulment and obtain a marriage license.
Massachusetts family law allows same sex couples to get married, and marriage does not require a blood test as it does in some other U.S. states.
Divorce in Massachusetts
Not all marriages last forever. Divorces often end up with the two separating spouses needing help from family law attorneys to resolve differences over the division of financial assets, child custody, spousal and child support. Divorces are rarely as simple as the couple just going their separate ways, although the longer the spouses have been together, the more their assets and income are entwined and the younger the children they have together, the more complicated the divorce. Family courts in Massachusetts prefer couples to come to an agreement that works best for them and their children, but when differences are too difficult to resolve, the court will step in to decide who has custody of the children, using the principle of what is in their best interest, make decisions about shared assets, and enforce child and spousal support payments. These decisions are not always cast in stone and can be modified further down the track if circumstances change significantly.
Massachusetts is a “no-fault” divorce state, so either spouse can file a petition for divorce stating that the marriage has irretrievably broken down. Spouses intending to divorce may also petition for a “fault” divorce based on a number of other criteria. Both spouses must have lived together in Massachusetts and at least one of the spouses must have lived for a year in the state or the reasons for the divorce occurred while in the state. There is also a 90 day “waiting period” before a divorce is granted following a petition, unless the court decides otherwise.
Child custody and support
Child custody is often one of the most contentious and problematic issues when a marriage or civil partnership ends. Child custody arrangements can vary but typically an agreement is made, either between the parents alone or by the court about who is the legal and physical custodian. Either one parent or both can share custody. If the issue cannot be resolved amicably, the court will make a judgment based on the best interests of the children. This will include making decisions about who pays for the care and welfare of the children. Child custody decisions typically involve children up to the age of 18, or older, if one of the children is still attending high school or needs special support.
Massachusetts allows adults and children to change their names provided they do so not to carry out fraud or do anything illegally. Using the correct name, whether it is the original name, a married or adopted name, or a deliberate change in name is important for many official reasons such as the issuing of a river license, passport, bank account, property ownership etc. Generally, all an adult has to do is to fill in a court form (petition) to change their name. The court makes the name change request notified to the public.
Where there is a dispute about paternity, the court may be asked to resolve the dispute. There isn’t necessarily any dispute at all, but it may be useful for one or other parent to have a father declared as a parent of a child by the family court. This would be common practice, for example, for unmarried parents to establish the father of joint children.
Domestic violence protection orders
The court may be asked to issue a domestic violence protection order if one of the spouses has experienced domestic violence or abuse by the other spouse. If serious physical or mental abuse or violence borders on assault, or if a spouse has breached a domestic violence protection order, then this may become a police matter as a crime such as assault may have been committed.
The role of the Massachusetts Probate and Family Court
In Massachusetts, family law cases and cases involving probate laws or disputes over probate or the inheritance of a deceased estate are both dealt with by a Probate and Family court. 14 Massachusetts counties have their own court. Probate and Family courts not only have jurisdiction over family law and probate matters but also serve to keep archived records of cases of divorce, name change, adoption, wills and estate records.