A divorce from the bonds of matrimony may be by agreement or litigated. If the parties come to agreement as to the terms of their divorce, typically after some form of alternate dispute resolution (ADR), then they may petition the Court to accept their agreement for divorce. The parties may also litigate their divorce upon the traditional grounds for divorce or due to an irretrievable breakdown of the marriage. Even if the parties begin a contested litigated divorce, they may later come to an agreement as to the terms of the divorce and present that agreement to the Court for approval so as to avoid a trial. Whether the divorce is obtained by litigation or by joint petition, the Court will require the parties to complete a financial statement and will enter a Judgment that provides for proper provisions for child custody, support and maintenance as well as for spousal support/alimony and the disposition of marital property, where applicable.
When a divorce action is litigated the Court will likely enter temporary Orders pursuant to child custody, child support and maintenance as well as any other matters necessary during the term of the action. Each party must provide certain information to the other (mandatory discovery) and may serve additional discovery requests to the other so long as it is relevant to the subject matter involved in the pending divorce action and it appears reasonably calculated to lead to the discovery of admissible evidence. Each party must produce items of discovery within the time frame allotted under the rules of Court. Often times discovery assists in the framing of issues and, potentially, aids in the resolution of issues by negotiation.
The Court may appoint a Guardian Ad Litem (G.A.L.) whenever it appears that a minor, or other legally incompetent person, is interested in the matter. The role of the GAL is to conduct an investigation into the issues assigned by the Court then to submit to the Court a written report as to their findings. The investigation authorizes the GAL to contact any person having knowledge of the issues, to consult with physicians, therapists, teachers or other persons having specialized or factual knowledge, or to require psychological or medical evaluations where appropriate. Common subject matter in a GAL report are issues of child custody, support and maintenance. These issues include the social, marital and parenting history of the parents or caregivers, the developmental history, health, special needs and age of each child, the role each parent or caregiver in the upbringing of each child, the parental or caregiver capacity of each party, each party's capacity and ability to provide continuity and stability for each child, the attachments of each child to his parents or caregiver, siblings or any other person. The report may make a recommendation to the Court regarding such matters, such as the need for counseling and recommendations regarding custody and visitation. However, recommendations are not binding on the Court. For it is the Judge who has the authority to make Orders in the matter.
William M. Driscoll, Esq. 6 Courthouse Lane, Suite 5 Chelmsford, MA 01824
