Family Law: Frequently Asked Questions

An uncontested (or "1A") divorce means both spouses agree on all issues — property division, support, parenting — and file jointly with a separation agreement. It is faster, less expensive, and more private. A contested ("1B") divorce means at least one issue is unresolved and the court process is used to reach a resolution, though most contested cases still settle before trial. Even in an uncontested divorce, each spouse should have their own attorney review the agreement, since one attorney cannot represent both sides.

Massachusetts follows "equitable distribution," which means fair — not necessarily equal. The court considers factors including the length of the marriage, each spouse's contributions (financial and otherwise), age, health, income, and future opportunity. Notably, Massachusetts courts can divide all property owned by either spouse, potentially including inheritances, premarital assets, and even certain trust interests, depending on the circumstances. How retirement accounts, businesses, and real estate are divided carries significant tax consequences that should be addressed before an agreement is signed, not after.

Massachusetts uses Child Support Guidelines that generate a presumptive amount based primarily on both parents' incomes and the parenting schedule, with adjustments for health insurance, child care, and other factors. Courts can deviate from the guidelines in appropriate cases. Support can also be modified later if there is a significant change in circumstances, such as job loss or a change in the parenting plan.

The guiding standard is the best interests of the child. Massachusetts distinguishes between legal custody (decision-making about education, health care, and religion) and physical custody (where the child lives). Courts increasingly favor detailed parenting plans over labels — schedules for weekdays, weekends, holidays, and vacations, plus how parents will communicate and resolve disputes. There is no fixed age at which a child chooses; a child's preference is one factor among many, given weight according to age and maturity.

When parents are unmarried, paternity must be legally established — by a voluntary acknowledgment signed by both parents or through a court action — before custody, parenting time, and support orders can enter. Until then, an unmarried father generally has no enforceable custody rights, and the mother has sole custody by default under Massachusetts law. Establishing paternity also matters for the child: inheritance rights, health insurance, Social Security benefits, and medical history.

Alimony is support paid to an economically dependent spouse. Massachusetts law ties the duration of general term alimony to the length of the marriage — longer marriages support longer alimony, and marriages over twenty years can result in indefinite awards. Alimony generally terminates on remarriage of the recipient and can be modified or suspended based on cohabitation or retirement. Note that for divorces finalized after 2018, alimony is no longer deductible to the payor for federal tax purposes — a change that significantly affects how settlements should be negotiated.

​Pre/Postnups are not just for the wealthy. They are particularly valuable in second marriages, where each spouse wants to protect assets for children from a prior relationship; for business owners who want to keep the business out of a future divorce; and for individuals with expected inheritances or trust interests. To be enforceable in Massachusetts, a prenup must be fair, entered voluntarily, and preceded by full financial disclosure — and each party should have independent counsel. A well-drafted prenup also coordinates with your estate plan rather than contradicting it.

Immediately and significantly. During divorce proceedings, automatic restraining orders limit changes to certain assets and beneficiary designations. After divorce, Massachusetts law revokes provisions for a former spouse in a will, but this does not automatically fix everything — retirement account beneficiary designations, life insurance, trusts, health care proxies, and powers of attorney all need to be reviewed and updated. Updating your estate plan should be one of the first steps after a divorce is final, and in some respects even before it begins.

A guardianship gives a court-appointed person authority to make decisions for a minor or an incapacitated adult. For minors, guardianship may be needed when parents are unable to care for a child. For adults — often an aging parent with dementia or a child with disabilities reaching age 18 — guardianship or conservatorship may be necessary if no durable power of attorney or health care proxy exists. These proceedings are public and court-supervised, which is exactly why advance planning documents are so valuable: they usually make guardianship unnecessary.

In most cases, yes — and it's usually better for everyone, especially children. Options include direct negotiation between attorneys, mediation (a neutral facilitator helps you reach agreement), and collaborative divorce. Even resolved cases require a court appearance to finalize the divorce, but the substance can be worked out privately. Litigation remains available and sometimes necessary — particularly where there is hiding of assets, domestic violence, or an unreasonable opposing party — but it should generally be the last resort, not the first.