The Massachusetts Court has traditionally been conservative in its' approach to divorce and the dissolution of the nuclear family. The courts routinely followed conventional practice regarding the custody of children and the division of the family estate. This has meant that the children almost automatically resided with the mother post-divorce and the marital assets whether accumulated before or during the marriage were divided equally.
While the traditional approach may still work with some families, today, in many circumstances a conservative approach to divorce does not serve the best interests of the children or equally divide the marital estate. In the past ten years, Massachusetts' courts have aggressively considered the new family dynamic of the dual-parent working household. The courts, lead by numerous progressive, innovative jurists showing little fear of changing the traditional approach to divorce have replaced time honored decisions with orders which more appropriately reflect today's family and today's parents. This article will briefly look at the more innovative approaches to divorce, child custody and separation of assets to give the layperson some knowledge of the possibilities available in today's family courts.
Marital Estate:
In the typical 1960's family, the father worked every day while the mother stayed at home and raised the children. In this dynamic, the court attempted to maintain the lifestyle to which both parties had become accustomed in fashioning a fair divorce settlement. This invariably meant that the mother was almost always awarded the home and sufficient income from the father's wages to provide for her needs at a lifestyle she was accustomed to.
General Law 208 section 34 is the statute that currently guides the court in divorce decrees. Pursuant to G.L. 208 s. 34, the legislature directed the court to divide the marital estate in an equitable fashion given the circumstances and contributions of each party during the marital union. In many cases this still means that the dominant wage earner will be left in a position of supporting the more home oriented spouse. However, the court has recently expanded the definition for equitable division in Williams v. Massa, 728 N.E. 2d 932 (2000). In this case, the court allowed the dominant wage earning male spouse a 75% interest in all the assets of the estate. The court reasoned that the father not only supported the family, he also took care of a majority of the domestic chores while caring for a majority of the children's needs. In this case the court determined that the father's equitable division of the assets was far more than anything the mother had invested in this marriage. As a standard, this case changes the way people who are contemplating divorce should consider the break down of the marital estate. There is a fair, equitable division of assets in every case and it does not always mean that the supporting spouse will remain the dominant provider post divorce.
Child Custody:
The Court is empowered under General Laws 208, s. 19 and 28 to determine which party receives physical custody of the children both while a divorce is pending and upon finality of the judgment. Traditionally the courts have automatically placed the children with the mother while a divorce action is pending. This inevitably results in the permanent placement of the children with the mother post divorce. The standard the courts use is the best interests of the child. While no one will disagree that the best interest of the child is the preeminent concern post divorce the courts have become increasingly responsive to equitable child custody arrangements and placing the children with the father. The court will now view many factors in deciding where to place the children.
The ultimate concern remains the best interest of the children, but in today's changing family the courts look at the totality of the circumstances. Therefore the courts now give equal weight to the primary caretaker during the marriage, roles of either parent during the marriage, the children's preferences and who really is the better parent. In Kelly v. Kelly , 2000 WL 1477107 a August 2000 case, the father was awarded sole physical custody based on many of the above factors. Similarly, In Re custody of Zia, 736 N.E.2d 449, again the father was awarded custody even though he did not have a permanent residential address, was not the custodial parent during the pendency of the proceedings, and did not present the model parent. However, based on the mothers living habits and consistent efforts of separating the child from the father and conversely the father's consistent positive influence on the childs development and upbringing the court was persuaded that in the best interest of the child, she should reside with the father. These cases indicate that the courts will weigh many factors in deciding the custodial arrangements for every child and in each case there will be some overriding concern which will be determinative of the outcome.