Wednesday, February 9, 2011

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because you would then technically be married to two people.

2. If the Nisi period crosses December 31, then you are considered married for that tax year which means you must file under "joint" or "married, filing separately" and cannot file as "single".

3. Under some health insurance plans you may not be able to stay on your ex's health insurance (as explained further in our previous post, Will I be able to keep my health insurance after the divorce?), but at least during the Nisi period you can stay on the health insurance.

32 comments:

  1. Hello, I filed for divorce in July 2010. On 4/4/2011 I went to my final hearing for my divorce and it was granted. I didn´t understand what the judge said about waiting 90 days. After researching and understanding the ´nisi´ waiting period she was talking about, now I ask, why does this have to apply in my case? I had a divorce by publication. I have no knowledge of my ex husband´s whereabouts for 6 years now. All atempts were made to find him and he never responded. There is no ´making up´ possibility there. Do I still have to wait 4 MORE months? Thank you!

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  2. In response to Anonymous, unfortunately there is no way for you to avoid the waiting period. I have seen parties request that the Judges waive this nisi period, and these requests always fail. Because the nisi period is by statute, there is no discretion provided by judges in this matter to consider the specific facts of each case. The simple answer is that it applies in your case because it applies in all cases without exception.

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  3. Hi,
    My Judgment of divorce Nisi was ordered on April 15, 2009
    The order states "the agreement of the parties dated September 3, 2008 is approved and incorporated into and made part of this judgment, and shall not merge and shall survive and remain as an independent contract".

    So does that mean my divorce date date is September 3, 2008 or April 15, 2009 when the order was made or 120
    days after the divorce Nisi was ordered.

    I don't have a copy of my divorce decree because I thought that the divorce Nisi was the decree. I am just now finding out years later because I am remarrying and the paperwork requires a divorce date from my previous marriage.

    Please help!

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  4. Thank you for the comment, Anonymous. The date of your Judgment of Divorce Nisi is the operative date. So your divorce became absolute 90 days after April 15, 2009. If you need a Certified Copy of your Final Divorce Decree you can obtain it from the Probate & Family Court Registrar's office in the County where you were divorced.

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  5. Hello, I was issued a divorce in court on Mar 2, 2012 with alimony from my ex-husband. The judge said there will be a divorce nisi for 120 days and that neither of us could re-marry during this time. However no one, including my divorce attorney, can tell me if I can sell my home and purchase another home during this time.
    Specifically my present home is a family home that my elderly mother lives in and also my neice is buying from me. I want to move on with my life and get my own place without having to live with my mother.
    I am selling my house to my neice for alot less than it is worth.
    Am I able to do move forward. Thank you.

    ReplyDelete
  6. Thank you for your comment Anonymous. Whether or not you can sell specific property during the Nisi period depends on the language of your Agreement (or trial judgment if your case went to trial). If you're not sure, you should consult with an attorney regarding the specific language of your order prior to taking any action.

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  7. Hi...great website. I quitclaimed deeded my house to my wife after we divorced but during the NISI period. She had a fire claim shortly after that (still during NISI). The insurance is in my name, as is the mortgage. They want to pay a fair amount (30k) for work she will likely have done for perhaps 10K. Do I have a claim to the balance or any portion thereof?

    ReplyDelete
    Replies
    1. Thank you for your comment Anonymous. The fire claim is probably not shared property, but the terms of your Judgment will be controlling and you should have an attorney review the specific language of your Judgment and/or Agreement to be sure.

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  8. We just found out (because my sister tried to refinance her house) that her divorce nisi never got filed. She and her husband thought her divorce was done 4 years ago when the had the final divorce hearing. Apparently the court held up the nisi filing because there was no child support order (which she had agreed to) and thought that might be an issue? Anyway - her lawyer and her husband's lawyer never noticed it never got officially done.

    This is potentially going to cause major problems for her for everything - including possibly opening up a new custody battle plus her husband has racked up tens of thousands of dollars worth of debt in the last few years and is in the process of filing bankruptcy. Plus she's filed tax return as a single person the last four years. AND the land court somehow okay'ed a few years ago that the deed to their house be put in her name solely because they believed the divorce was final.

    The question is what should she do now? Can a judge sign a decree to retroactively issue a NISI? Does she need to hire yet another attorney to represent her to get this giant mess straightened out somehow?

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    Replies
    1. Janet, Thank you for your comment. This is an unusual situation and how it is handled by the court will depend on many facts which you have not provided here. I suggest that your sister consult with an attorney directly about her situation.

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  9. My husband and I were married on June 30. He has a Judgement Nisi from a MA county court dated 3/26/12. SO, when we calculated the 90 days from the nisi date we decided to marry on 6/30/12.

    Today, he went to the courthouse to get a copy of the final divorce decree. It lists the date as 7/10/12. This makes no sense. Are we truly not really married now, and do we have to redo everything from 6/30 or is this just a clerical matter?

    ReplyDelete
    Replies
    1. Anonymous, thank you for your comment. In my experience the Absolute date is always 90 days after the Nisi date in Massachusetts. My first step would be to go ask the county register's office why that is not the case.

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  10. Hello, I had a divorce hearing in front of a judge in Norfolk County Massachusetts in December 2007. I had asked at the time if I'd beable to get remarried in February 2008 and was told by the clerk yes. My current wife and I went to Las Vegas and married February 2008. We took a document from Massachusetts which enabled us to get a marriage license there. I just found out my divorce was offical March 16, 2008! My current wife and I are very upset and have no idea how to rectify this. Nevada has no waiting period, but Massachusetts does. What is my material status? My current wife and I have filed taxes together for years, are we breaking the law?

    ReplyDelete
    Replies
    1. It is possible that you marriage is void. In Massachusetts, under M.G.L. c. 208 S8 a marriage in the commonwealth is automatically void if either party has a former spouse. The same may be true in Nevada. You should consult with an attorney to determine the exact consequences of your situation.

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  11. 30 days after the divorce agreement was signed by the judge my ex spouse took out a 2nd mortgage on the property when she was suppose to had refinance to remove my name.. The divorce nisi was not finalize.

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  12. Can the waiting period be waived by a judge and have my uncle be able to get married immediately (or close to it) to his girlfriend?

    Here are the circumstances:

    My uncle (roughly 60 years old) has been recently diagnosed with Stage 4 Pancreatic Cancer which has already spread to his liver and possibly his head.

    The Doctors give him 2 months to live!!!

    He and my aunt have been, what I thought was divorced for probably 15 - 20 years because they haven't lived together since. I just found out they never legally got divorced...

    His live-in girlfriend of well over a decade tells me that my aunt and uncle are willing to legally divorce without contesting anything...there are no minor children involved....

    He (and everyone) would like to marry his girlfriend...but he might not live long enough to have it happen.

    So, is there a way the judge can waive the waiting period? They're in Plymouth County, Massachusetts.

    Thank you!

    ReplyDelete
    Replies
    1. Anonymous, thank you for your comments and question. While they might find a sympathetic Judge to this story, my experience in the Massachusetts courts has been that the waiting period is statutory and can't be waived. I have seen Judges deny requests to waive the period indicating that they have no authority to do so, regardless of how good they believe the reason to be. There may, however, be other alternatives depending on the goals of your uncle.

      There are essentially two elements of a marriage: love and legal benefits. If your uncle's goal is to provide the legal benefits to his girlfriend of a marriage, then his wife could waive her rights and a new estate plan prepared that awards all assets to his girlfriend. This will not provide all legal benefits of marriage, but could manage some.

      If your uncles desire to get married is purely to recognize publicly his love of his girlfriend, then he can still have a marriage ceremony, simply without the legal form being completed. Marriage ceremonies are often performed without legal significance, for example between by same-sex couples in jurisdictions where their marriages are still not legally recognized.

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  13. Hi , I had my divorce hearing on Sept 18th 2012 and i was granted divorce.after ,i have received a findings and order statement signed by the Judge and sent by my lawyer . Do I have to expect to receive anything else from court or should i wait 120 days and that will be all ,or i do have to wait for the Judgment of divorce before I can start counting the 120 days

    ReplyDelete
    Replies
    1. If you case a 1A Joint Petition, then you should receive a Judgment of Divorce Nisi as well (approximately 30 days after your hearing). That Judgment becomes final 90 days later (and the absolute date is usually written on the Judgment as well).

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  14. If your divorce enters at the end of August, and the nisi period therefore ends at the end of November, what are the consequences for filing your taxes? Can you file as a single person despite being married for either 2/3s or 11/12s of the year? Are you each entitled to take deductions and otherpotential tax benefits through the end of the nisi priod? Does one person have more of a claim to such benefits? Thanks for any feedback.

    ReplyDelete
    Replies
    1. For federal tax purposes, the IRS considers your marital status as of December 31. So if you are married on December 31 then you were married for the whole year, and if you are divorced on December 31 then you are divorced for the whole year. Regarding individual benefits and deductions, these should be addressed in your Divorce Agreement. If they are not, then you should consult with an attorney and an accountant to determine which benefits and deductions you may take legally on your return.

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  15. We are planning to file sometime next week. Can I request a specific date for my divorce to be final and the marriage over?

    ReplyDelete
    Replies
    1. No, as described in the post above the date of the divorce being final is dependent on the date of the hearing. Depending on your county you may be able to request a specific hearing date.

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  16. I just recently received my Judgement NISI in the mail... stating my divorce will be absolute on May 9, 2013. Will the court send me a copy of the divorce decree or should I contact the clerks office? I have been trying to get a divorce for 2 years now and really would like my maiden name back, but I cannot change it with social security without the decree...

    ReplyDelete
    Replies
    1. Courts in Massachusetts do not automatically send out the final Divorce Decree (also known as the Judgment of Divorce Absolute). In order to get a copy of this you need to go to the court house and pay $20 (or mail a check with a request and self-addressed stamped envelope). You will need that certified decree in order to change your name with the social security department.

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  17. Great site ... my divorce is old - I filed Oct 80 with a no fault, and as I recall, neither of us could remarry until Oct 81. My ex got married the summer before it was final, so I'm not sure if he's legally married. I'm not sure how he did this - I never got a copy of the divorce decree. He's still married, so maybe 30 years later it doesn't matter that much.

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  18. I am hoping to remarry this September and am getting very nervous after reading this site.

    I understand that there is no possibility of eliminating the 90 day waiting period. However, is there a way to speed up the filing of the judgment nisi?

    My ex and I have lived separately for many years and although we have a child, we are great co-parents. (So much so that people at his school are often surprised that we are not together).

    Our plan is to file at the end of this week but I am nervous about it taking time to get a hearing date and to get the nisi filed.

    How long does it typically take to get a date for the judge after you file if there are no issues and everything is uncontested?

    Is there anyway to speed up the 30 day filing of the judgment nisi? This seems like just an extended waiting period!

    This would give me a better feeling for the total time.

    ReplyDelete
    Replies
    1. How long it takes to get a hearing date varies by County. For instance in Middlesex County if all of your paperwork is in order and you both arrive by 8:30 A.M. you can actually be heard the same day in Cambridge. In other counties, my experience has typically been 3-4 weeks to obtain an uncontested hearing date, though if there is a good reason for requesting a sooner hearing you might be able to obtain a faster date upon Motion.

      There is no way to waive the 30 day waiting period because it is statutory.

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  19. Hi, I had my final divorce hearing in Boston on June 25, 2013. Can I ask for a copy of the Divorce Nisi exactly 30 days later at the court house? Or do I have to wait to receive it in the mail? Thank you, Charles

    ReplyDelete
    Replies
    1. You can obtain a copy as soon as it is docketed, but that usually takes some time. Although the date should be 30 days after your court hearing, it is not always completed and docketed the same day. If you want to see if you can pick it up, I would suggest calling ahead.

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  20. I went for my divorce hearing and the judge granted the divorce. Correct me if this is wrong. I want to make sure that I understand the nisi period well in MA.\

    Steps:

    1. Judge grants divorce
    2. Exactly 30 days from Judge granting divorce I should receive a Judgment of Divorce Nisi
    3. 90 days from NISI date, divorce is final and absolute
    4. Example if Judge grants divorce on March 10th, you get a nisi letter April 10th and divorce is final on August 10th?


    ReplyDelete
    Replies
    1. You're close. The 30 day and 90 days are not necessarily exact because they don't account for whether the final day lands on a holiday or weekend. For more information check out our more recent post: When does 30 + 90 not equal 120? In Divorce Court!

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