Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

There is currently a crisis in Massachusetts state courts.  Specifically I’m talking about the Probate courts where probate and divorce matters are handled however the crisis extends to the district courts and the superior courts.

The crisis I’m talking about is underfunding and under-staffed.

In the good old days (a year ago), I could walk into Norfolk Probate Court to file a new divorce and get it docketed and assigned a trial date all at once and in about 15 minutes.  Now, I’ve had cases that I’ve filed with the Court for over a month and half that have not been assigned for trial yet.  I have cases that I’ve filed a week or two ago that still have not gotten docketed.  I have not been able to do a walk-in to get a motion heard because the past several times I’ve been to court, there was only 1 sitting judge for the entire county!

I’m not complaining about the service or efficiency of the personnel that’s working at the courts because I know they’re doing their best with what little they have.  I am however, complaining about the lack of funding for the courts that play a vital role in our justice system and civil dispute resolution system.  Without the courts to solve problems and conflicts and divorces, we are at a standstill.  While my clients are suffering through this recession and being forced by the economy to continue living together despite their divorce, it has now been made almost unbearable because of a divorce process that typically takes 5-6 months is now taking upwards of 9 months.

The courts are a gateway to a civil and orderly society.  Funding to it must be restored.

You’re divorcing and you need to sell your house that you own jointly with your spouse but with the recession, your house is now worth less than the mortgage that you have on it.  You’re under water. You’re upside down on your mortgage.  Whatever you call it, you’re stuck and don’t know what to do.

Well, here are your choices:

1. You stay in the house with your divorced spouse until either one of you can afford to move out or refinance.  You might be thinking to yourself that that is ridiculous.  Who would ever live with their divorced spouse AFTER the divorce?!  More and more people are doing so in this new economy because there is simply not enough money to go around.  It’s a sucky situation but it’s a reality.
2. You and your spouse continue to co-own the house together until someone can refinance the property.  Either you live in the house or your spouse lives in the house.  You could have a situation where only the person who’s living in the house pays for everything or everything is split 50/50.  Either way, you two will still own a house together.
3. You refinance.  If you try to refinance, know that you will have to put up the money to make up the difference between what you owe and what your house is worth.  That would be tens of thousands of dollars if not more.  Some people have that kind of money but most do not.
4. You do a short sale.  A short sale is when you get the permission of your mortgage lender to sell the house for less than what you owe on the mortgage and hopefully, you negotiate that you won’t have to make up the difference.  Know that most lenders will not extend the option for a short sale unless if you’re behind on your mortgage payments by several months.  At that point, your credit would’ve taken a hit already.
5. You let the home go into foreclosure.  This is not an ideal situation and it’s not generally recommended.
6. You try to negotiate a modification or an assumption of the current mortgage.  This is very difficult and very lender specific.  Some will let you  modify the loan or do an assumption whereby you don’t have to refinance the house and yet be allowed to remove a spouse’s name off the mortgage.  It’s worth a try.

Those are all your options.  The important thing to remember is this:  do not ever sign over a deed of the house over to your spouse’s sole name without also being off the mortgage.  If you do so, you will have no equity interest in the property yet be liable for the mortgage (debt interest).

[Paying Alimony Forever?]

I got a call today while offering my time to answer calls for the Massachusetts Bar Association’s monthly Dial-a-Lawyer program regarding the Batterers Intervention Program (BIP).  BIP is a program for batterers in a domestic violence situation.  It is similar to AA for alcoholics where batterers go and get counseling as a group and also individually.  The purpose is to rehabilitate the batterer so that they no longer batter their spouse, significant other or family member.  Does it work? Rarely.

The recidivism rate for batterers who attended and completed the BIP is unacceptably high.  There can be many explanations – it’s not a voluntary problem for most because they’re referred by the criminal justice system; they see it as punishment; once a batterer, always a batterer.  There are a myriad of explanations but the one thing I know for sure is that they don’t work well.

As a victim of domestic abuse and violence, should you depend on the BIP to rehabilitate your abuser?  A therepist or counselor would tell you that it’s up to you to decide.  However, as a divorce attorney, I don’t have to be impartial and I believe it to be my job to advise people who they should do.  My advise is this: it’s great that the abuser is going to treatment and I hope they never batter someone else but for the abused, it’s already too late.  A good and healthy relationship won’t likely result from any treatment so the victim must move on.  Get a divorce or move away.

A counselor will probably advise that the victim decide for themselves because it empowers them but I believe victims are seeking different advice when they go see an attorney than when they go see a counselor.

Click here for a list of Domestic Violence Programs in Massachusetts.

How long will your divorce take? It depends on your particular situation.  Let’s take a look at some examples.

Scenario 1:

You and your spouse both agree to get a divorce and you’re filing a joint petition for divorce (an uncontested divorce).

It will take approximately 5 months from beginning to end for this type of divorce.

Scenario 2:

You and your spouse has separated and you don’t know where your spouse is.  Or, you and your spouse has separated and you file for a contested divorce and your spouse refuses to answer.  This will require you to file for a contested divorce with no answer from your spouse.

It will take approximately 9 months from beginning to end for this type of divorce.

Scenario 3:

You or your spouse wants a divorce but cannot agree on the terms.  This will require you to file for a contested divorce where both parties are present.

This type of divorce will will take at least 9 months but can go on for an undetermined amount of time depending on how contested the case is and when the conflict gets resolved.

In short, an uncontested divorce will take at least 5 months and a contested divorce will take at least 9 months.  There is no way to expedite the process because the time periods are set by statute.