The domicile statute in Massachusetts can be surprisingly confusing, especially when couples often own multiple homes, live in separate cities for professional reasons, or have recently moved to Massachusetts. All of these situations are governed by M.G.L. c. 208, § 4 and the "exceptions" to the domicile statute contained in § 5. Subject to certain exceptions, § 4 precludes a plaintiff from filing a divorce complaint in Massachusetts in the following situations: (1) if the couple has "never lived together as husband and wife" in Massachusetts, or (2) if the "cause" (i.e., the irretrievable breakdown) occurred in another jurisdiction (unless the parties had lived together as husband and wife in Massachusetts and one of them lived in Massachusetts at the time the cause occurred).
I recently read an article in the New York Times entitled "When the New You Carries a Fresh Identity, Too" written by Megan L. Wood that raised interesting questions about divorcing women and a name change after a divorce. The article brought up the fact that many divorcing women are at a crossroads of their life where the divorce gives them a chance to have a fresh identity by choosing a new last name. As the article recognizes, "[h]anging on to your ex's last name can daily conjure an unhappy past, while going back to a maiden name [they]'ve outgrown can be difficult to imagine." The solution, for some, is selecting another, neutral name.
In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the Complaint and the Track Assignment Notice, to the opposing party's attorney. This way the opposing party, in the privacy of his or her attorney's office, can sign the Acceptance of Service paragraph of the Summons before a Notary Public. This formally puts the Defendant on notice of the filing of the Plaintiff's lawsuit. It satisfies the requirement that the Plaintiff serve the Defendant with notice. But it also eliminates the embarrassment of a Process Server, Constable or Deputy Sheriff having to formally serve the opposing party in person, at work, in the presence of strangers, etc. Problems can arise, however, if there is a delay in opposing counsel having the opposing party come into his or her office to sign the Acceptance of Service paragraph of the original Summons, especially in cases involving a Complaint for Divorce.
Upon the filing a Complaint for Divorce, the spouse initiating the divorce action, the plaintiff, becomes subject to the Automatic Restraining Order under Massachusetts Supplemental Probate and Family Court Rule 411. The spouse, who must respond to the plaintiff's action, or, in other words, provide an Answer to the Complaint, is the defendant; and he or she becomes subject Rule 411 upon service of process, i.e. when a Constable or Sheriff serves the defendant with the Summons and Complaint.
Business owners and their spouses involved in a pending divorce should consider various issues specifically related to business ownership. Here are a few of such considerations: