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Information Sheet

DIVORCE

It information is to be used together with the advice provided to you by an attorney. Its purpose is to provide some information about certain procedural questions that are often asked in divorce cases.

1. Beginning the Divorce Process:

A divorce starts in court by the filing of a document called a Complaint. There are a number of grounds for a divorce. The most common ground for divorce is an irretrievable breakdown of the marriage (either contested or uncontested). The second is cruel and abusive treatment. There are other grounds for divorce that may apply to your situation, depending on your experiences with your spouse. The grounds for divorce have some bearing on the length of time it will take you to obtain a divorce.

After the Complaint for Divorce is filed, the Court issues a Summons. The Summons and a copy of the Complaint must be delivered to your spouse. This is arranged by the attorney, delivered by a process server, or your spouse may voluntarily agree to “accept service.” How a summons is delivered depends on what is best in a given situation.

If your spouse files a Complaint first, I will prepare and file an Answer and may file a Counterclaim also asking for a divorce.

2. Pretrial motions:

A Motion is simply a request, usually in writing, to the Court. A Motion is a request for relief from the Court with about a specific problem. Some examples of a Motion that may be made before a final hearing are:

Motion for Temporary Support;

Motion for Temporary Custody;

Motion for Attorney Fees; and

Motion for Temporary Restraining Order.

These examples may not be necessary, but others may be appropriate.

As a rule, a client must be present in Court for a hearing of any pretrial motions having to do with custody or financial matters.

An Order entered by the Court on a pretrial motion is a Temporary Order, which remains in effect until there is a final hearing.

3. Discovery:

The discovery process is where an attorney tries to find out all the facts that will be important or relevant to your case before the trial or final hearing. This involves financial and nonfinancial information. Discovery is very important because it will supplies the information necessary to enable to recommend to you a fair settlement or resolution, or to present a complete case to the Court if it is necessary to proceed with a trial.

The length of time for discovery may vary according to various factors, which include

The complexity of the issues involved;

The difficulty in obtaining the requested information;

The obstinacy of your spouse;

Other commitments your attorney might have; and

The need to obtain expert advice about certain aspects of the case (for example, real estate appraisals or the valuation of a business by an accountant).

The length of a case depends on the issues and the cooperation of the parties. While is impossible for an attorney to predict exactly how long the process may take, you will do yourself a disservice if you pressure for artificial deadlines to get the case over. Often, haste interferes with the attorney’s ability to obtain full discovery of all the facts necessary to obtain the best results for you.

There are certain built‑in time periods that can prevent your attorney from moving as fast as you may like. For example, if we request that your spouse produce documents for review, your spouse will have at least thirty (30) days to comply. This period is set by the Rules of Domestic Relations. By law, a contested no-fault divorce complaint must be on file at the Court for six (6) months before a trial can be scheduled. After the divorce hearing, there are mandatory waiting (“nisi”) periods before a divorce is final. Rules and statutes such as these are not within our control.

4. Probate Court Financial Statements:

Before the court enters any financial order or grant a divorce, the parties must complete a Financial Statement on a form distributed by the Probate and Family Court. This is the single most important document in a divorce case. This form is designed to provide the Court with information about each party’s income, needs, assets and liabilities.

The Probate Court Financial Statement must be signed by each party personally, and it is signed under the penalties of perjury. Therefore, it is extremely important that this form be completed exhaustively and accurately. You may be examined on this document in Court or at a deposition. It is necessary for you to review your own records to complete the form correctly. These records include your canceled checks or check registers, income tax returns, bills and so on. The attorney will help you complete this form, and will instruct you how to obtain the necessary information.

The important thing to remember is to be complete, honest and accurate, and to make no guesses about the ownership of assets or responsibility for payment of debts between yourself and your spouse.

5. How Does a Court Reach a Decision in a Divorce Case?

If the attorneys are able to negotiate a settlement, it will be a written into a Separation Agreement. This agreement will be submitted to the court for review and approval. In deciding to approve the agreement, the Court reviews the Financial Statements to decide if the agreement is fair and reasonable. If the Court determines that the agreement is fair and reasonable, it will incorporate part or all of the agreement into its Judgment of Divorce.

If a negotiated settlement cannot be reached, the case will be scheduled for trial. At trial, a Judge will listen to the evidence presented by both sides. At the end, a Judge will make a judgment about child custody, support, visitation, alimony, equitable division of assets and all other matters on which the parties could not agree. In making a judgment, the Judge is required to look at specific factors that are set forth in our statutes. The Court will also look to previous cases to obtain guidance in how to interpret the statutes. Even with these, each case largely turns on its own facts.

Either party may appeal a judge’s decision. However, it is very difficult to win an appeal in a divorce case. This is because a judge has great latitude and discretion in deciding what a fair and reasonable result would be. Each judge is different, just as the facts of each case are different. For this reason, it is impossible to predict the exact result you will get. I may try to “estimate” the possible outcomes to help you decide if it would be better for you to settle the case or go to trial.

CRIMINAL DEFENSE PROCESS

The criminal process is complicated and confusing. Knowing your legal rights is the most important factor. Therefore, a criminal defense attorney should be contacted as soon as possible. This attorney will understand the law relating to the crime you have been charged with, and will help you in making educated decisions as your case moves through the process. Most important for the person charged is not to discuss the case with any person until you contact an attorney. This avoids giving information to a person who may be summonsed to testify against you.

Time Line.

In District Court:

Stop, Search, Arrest, Booking, Arraignment, Pre-Trial, Trial, and Appeal.

In Superior Court:

It is similar, except there is an indictment by a grand jury, and possibly a probable cause hearing in the District Court.

Stop

A police officer can be legally stop a person for questioning. A stop is not an arrest. In a stop, the person is free to leave. During a stop, the officer may ask questions. A person has the right to refuse to answer. A person may be frisked by the police during a stop, but only if the police have a "reasonable suspicion" that the person is armed and dangerous or possesses contraband. In such a case, a pat down search is permitted. The police is not allowed to reach into pockets, unless they are able to identify the objects by plain feel as contraband.

Searches

Search Warrants

A search warrant authorizes is a court order allowing the police to conduct a search of a specific, place such as a home or apartment, for specific item(s), a specific type of item, or contraband. To issue a search warrant, "probable cause" is necessary.

Probable cause to search means that:

It is more likely than not that the specific items to be searched for are connected with criminal activities
Those items will be found in the place to be searched

Warrantless Searches

Generally, warrants are required for searches. Search warrants are not necessary for the following:

Searches incident to arrest: Police officers can search the body and/or clothing for weapons or contraband when making a valid arrest.
Automobile searches: If a person is arrested in a vehicle, the police may search its inside. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
Exigent circumstances: Searches may be done if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
Plain view: No search warrant is needed when the police see an object in plain view of an officer who has the right to be in the position to have the view.
Consent: If a person agrees to a search of their body, vehicle, or home, the police are not required to have a warrant. A person is not required to consent to any police searches.

Arrest

In order to arrest a person, there must be "probable cause." This means the police must have a reasonable belief that a crime was committed and the person being arrested committed the crime. An arrest warrant is not necessary, unless the arrest is to take place in a person's home.

After a person is arrested, constitutional rights protect that person. There are two important rights: (1) right to remain silent and (2) right to have an attorney. After the arrest, a person is not required to say anything else to police or investigators, until an attorney is present. An opportunity to contact an attorney must be given.

Miranda Rule

Under the Miranda Rule, if a person is in police custody, certain constitutional rights must be made clear to the person before any interrogation begins. Those rights are:

The right to remain silent
The right to have an attorney present during questioning
The right to have an attorney appointed if one is unable to afford one

Miranda rights do not have to be read or told until one is taken into custody. If the police question a person before taking them into custody, anything said at that point can be used against the person later in court.

Booking

After the arrest, the police will bring the person to the police station for the booking process. This involves fingerprinting and a series of questions, such as name and date of birth. The person will also be searched and photographed. The personal property, such as jewelry and cash, will be collected, recorded and stored.

Appointment of an Attorney

In Massachusetts, if one cannot afford to hire an attorney, an attorney will be appointed to defend the person. That attorney is usually a public defender.

After an attorney has been appointed, the person may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with the attorney and may include:

A conflict of interest between the person and the attorney
The attorney becomes ill and cannot continue to the representation
There is reason to believe that the attorney is not providing effective assistance

Charges

When the clerk issues a complaint, the person is formally charged. A police officer or a private citizen can apply for the complaint. If a police officer seeks the complaint after an arrest, the officer must swear under oath to the facts alleged in the complaint. The Court routinely grants these applications.

An application for complaint brought by private citizen entitles the accused person to a show cause hearing, also known as "clerk's hearing." Here the accused person has an opportunity to be heard and to oppose the issuance of the complaint. Certain instances are exempt from the hearing requirement, such as threat of imminent bodily injury or risk of flight from the Commonwealth.

Arraignment

The first appearance after a complaint issues is the "arraignment." If the person has been in custody since their arrest, the arraignment usually occurs within 24 hours of the arrest.

During the arraignment, a "plea" to the charge is entered. These pleas and correspond to the definitions follow:

Guilty plea: This is a full admission to the facts of the crime and the fact that the person pleading is the one who committed that crime. Following a guilty plea, the judges imposes sentence.
Not guilty plea: This states that the person did not commit the crime as accused. After a not guilty plea, a pre-trial date will be set.
No contest plea: A "no contest" or "nolo contendere" may be entered with the permission of the court. This is essentially the same as a guilty plea, with the exception that, unlike guilty plea, a "nolo contendere" plea usually cannot later be used against the person in a civil lawsuit. A sentence is imposed.
"Mute" plea: A person may "stand mute" instead of making a plea. The court will then enter a plea of not guilty.

During the arraignment, the court will also:

Set bail, which, if met, will allow the person not to remain in custody while awaiting trial, with certain restrictions;
Refuse to set bail; or
Release the person on their own personal recognizance, which means that the court takes the person's word that they will appear when necessary for later court obligations

Bail

"Bail" is money or property put as security to insure that the accused will show up for further criminal proceedings. Bail can be paid:

In cash
A pledge of property (if permitted in that court)

Speedy Trial

There is a right to a speedy trial under the Sixth Amendment of the United States Constitution. This requires that the trial be held within a certain period after a person has been charged with a crime.

This right can be waived by asking for additional time for the preparation of the defense.

With limited exceptions, a defendant should be brought to trial in Massachusetts within 12 months.

Pre-Trial Conference and Hearing

A Pre-Trial Conference is usually the first date after the arraignment when the accused person returns to court. On that date, the person's attorney and the prosecutor will meet to discuss if the case may be disposed of without a trial, by agreement. The accused person must attend. No testimony or formal proceedings will take place. At the pre-trial conference, the prosecution may offer a plea bargain, an agreement for the person accused to accept some responsibility in exchange for a lesser punishment or perhaps a lesser crime than initially charged. At the conference, the parties may agree on the details of a trial, such as the number of witnesses, length, etc.

Pre-Trial Hearing is the next date court date, where a judge again attempts to resolve the case without a trial, which may include accepting a plea bargain. During this hearing, certain motions may be heard or scheduled.

Trial

There is a right to a jury trial, whereby a jury of 6 (District Court) or 12 (Superior Court) members must unanimously render a guilty or a not guilty verdict. The right to a jury trial may be waived by:

Pleading guilty; or
Choosing a bench trial (a trial in front of a judge)

If a bench trial is wanted, the judge will be the fact-finder. A jury must try a defendant in a capital case.

Appeals

A person found guilty by a jury or a judge is can appeal. The process varies depending upon the crime, but there are always time deadlines by which an appeal must be filed.

The general rule is 30 days after the judgment to file an appeal. There are many reasons to appeal from a guilty verdict in a criminal case, including "legal error." Legal error may include:

Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of constitutional rights
Lack of sufficient evidence to support a verdict of guilty
Mistakes in the judge's instructions to the jury regarding the case

An appeal may also be filed due to misconduct by a juror, or if there is newly discovered evidence to exonerate.

Sealing of Records

Under some circumstances, a person may be able to have a criminal record sealed. This means that the records cannot be obtained except in limited circumstances, such as a future criminal case against the person.

One may be eligible to have the records sealed if:

Criminal charges have been dismissed or a not guilty verdict was reached, or
It has been either 10 or 15 years since the conviction (depending on the crime), or
The record is a juvenile record that is at least three years old, or
There has been a pardon

If eligible, a person may file a written request with the Massachusetts Commissioner of Probation asking that the records be sealed. A hearing before a judge may be required in certain circumstances.

After an arrest, you already know that you may be facing serious consequences under Massachusetts law. Consulting with an experienced criminal lawyer who deals with MA criminal law issues every day can help you work through all the complexities which may leave you feeling overwhelmed. Here are the general steps in the process for most criminal legal matters in Massachusetts:

1. Clerk's Hearing: Also known as a Show Cause hearing. A Clerk Magistrate's hearing can happen before or after an arraignment. At the hearing, the Commonwealth must establish sufficient evidence to move forward with the charges against you. It is a chance for your lawyer to have the entire case thrown out before it starts.

2. Arraignment: An arraignment is your first appearance in court after being arrested. You will have the charges officially read to you and be advised of certain rights. If you are bailed, in most cases your arraignment date will be within a few days. If you are held in jail, you will generally be brought to court on the next business day.

3. Pre-trial Conference: Typically a pre-trial conference happens a few weeks after an arraignment. You and your lawyer will meet with the DA, who will sometimes offer a plea bargain if you decide to plead guilty. You can decide to accept the offer, or reject it.

4. Suppression / Motion Hearing: A court hearing during which motions are filed, depending on the circumstances. For example, if your lawyer feels that your constitutional rights may have been violated, he may file a motion to suppress the evidence against you on those grounds.

5. Trial: Most trials in criminal cases take place in district court where you have a right to have a trial in front of a judge (a bench trial), where the judge decides your guilt or innocence, or a jury trial, where 6 empanelled citizens make that determination.

6. Sentencing: The Court imposes a sentence after a conviction at trial or after a plea bargain is formally accepted and a plea entered. Sentences may include fines, probation, jail time, community service, or some combination or those. After a conviction in a District Court, the sentence is usually begins immediately.

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