The Importance of Legal Representation at the Motion Hearing

  • By:Karpenski & Schmelkin

A divorce in Massachusetts can be filed either under the “fault” section or “no-fault” sections of the Massachusetts Divorce Statute. A “no-fault” divorce can be filed either as an uncontested joint petition for divorce or a contested Complaint for Divorce. While it is ideal that the parties are able to come to an agreement on all issues in the beginning and file a joint petition for divorce, that is not always the case and it is very common for one party to file a complaint for divorce.

The contested no-fault divorce starts by one party filing the complaint for divorce with the appropriate court, service of the other party with the summons and complaint and, in many cases the scheduling and filing of motions for temporary orders. In Massachusetts, a pre-trial date cannot be scheduled until after six (6) months from the date of service of the summons and complaint for divorce. In many cases, the trial date is not scheduled until over a year from the date of service of the summons and complaint for divorce. Each case is assigned a specific docket number and each docket number is assigned to a specific judge that will cover the case throughout all stages of the case. For these reasons, it is important to have temporary orders in place during the divorce to address child related issues, such as custody, parenting schedule (former known as visitation), child support, and health insurance, and financial issues, such as alimony and how the operating expenses are to be paid during the divorce.

It is essential to hire an experienced divorce and family law attorney prior to the motion hearing for a variety of reasons.

1. The motion hearing is typically the first opportunity the parties are before the judge. It is vital to a party’s case to make a good first impression on the judge because, as previously explained, each case is assigned a specific judge who will preside over the case at all stages of the case, whether that is at the motion session, pre-trial conference, trial and if necessary, any future complaint for modification or complaint for contempt, as may be necessary. If a party makes a bad impression on the judge, that judge could quite possibly decide issues in the divorce against that party in the future.

2. Temporary orders set the stage for the rest of the case. For instance, temporary orders can issue by incorporating a full agreement of the parties, also known as a stipulation of the parties, a partial stipulation, or after a hearing in front the judge, where both parties have an opportunity to argue their case in front of judge. On a busy motion day, it is quite possible for a judge to be assigned fifty (50) cases to be heard through the day. As a result, it is not uncommon for each party, or their respective attorney, if represented by an attorney, to be given ten (10) minutes to argue their side of the case. Due to the high case volume and quick nature of the cases, it is common practice for parties to negotiate before and at court to limit the issues to present to the judge.

3. The divorce process is complex and can take months, if not years, to finalize. In addition to the legal issues present in a divorce, it can be a very emotional and stressful process for parties to endure, as child related issues and financial issues are most commonly present in a complaint for divorce. An experienced divorce attorney will guide you through the process while representing their best interests in court. An experienced divorce attorney can be objective and help their client understand what to expect and what not to expect during the divorce process, whether in negotiations or in the courtroom. An experienced divorce attorney can focus on the legal issues present in your case so that you have less to worry about during this emotional and stressful time in your life.

If you are going through a divorce or thinking about filing a complaint for divorce, it is in your best interest to seek out an experienced divorce attorney as soon as possible. Thinking that you can wait until after the motion hearing is a mistake. The divorce process in Massachusetts can be complicated and confusing and hiring an experienced divorce attorney from the get-go allows you to have an attorney advocating for your interests.

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Posted in: Divorce