There is a lot of confusion about what the waiting period is in a divorce and what it means after a binding divorce agreement (called a “separation agreement” in MA) is approved by the court.
In Massachusetts, a spouse must wait for the “Nisi Period” of either 90 days or 120 days before the divorce becomes final or absolute. This occurs after both parties appear at a hearing before Probate and Family Court and an agreement is approved (or a trial judgement).
The Agreement is binding on the day that the court allows it. However, before the divorce is final ( 90 or 120 days) the parties may not remarry another individual, they may not file tax returns as an unmarried individual and may have to pay a surviving spouse share if they die during that period.
The difference between the 90- and 120-days Nisi Period depends on how the divorce was filed. If the divorce was filed as an uncontested matter- in Massachusetts it is called “Joint Petition for Divorce” filed Massachusetts Laws Ch. 208 Section 1A.
The court will schedule a hearing and the judge will review the pleadings. Upon approving of the Agreement, the Judgment of Divorce Nisi will issue 30 days later and the “Judgment of Absolute” enters 90 days after that. So that means you wait 120 days from the day the divorce hearing for you to be officially divorced and where you can remarry and so forth, and the other facets of the divorce agreement are allowed.
On a “Contested Complaint for Divorce” it is 90 days before becoming final. That is under Chapter 208 Section 1 or 1B. People ask why there is a difference in time and is counter intuitive to have 120 days from a Joint Petition versus 90 days for a Contested Divorce.
The answer is in part that the court has to wait 6 months if it is a Contested Complaint unless the parties amend it to a Joint Petition. So, you will only have 2 options. You have to wait for that 6 months to elapse and then you can have an agreement on your Complaint for Divorce; or you can simply amend the Complaint for Divorce to that Joint Petition for Divorce where you therefore do not have to wait the 6 months.
So, if the 6 months have elapsed since you filed, you can just file the Separation Agreement (again language is confusing as this is the divorce agreement). Once that is approved, it will be 90 days for it to be Divorce Absolute or for the Nisi Period to end.
You should speak with an attorney, but the differences are if you have a full agreement you can file a Joint Petition for Divorce and that will generally be the quickest. If you have an agreement, but if you have already waited the 6 months you would likely move forward with the Complaint for Divorce that you have.
If it has been under 6 months, you might very well consider filing motion to amend the complaint for divorce to make it a Joint Petition for Divorce.
In addition, many times people ask why there is that Nisi Period. It does slow down the divorce process. It is somewhat an antiquated reasoning with many people saying the reasoning is puritanical and not relevant in today’s society. Many people think it should be a quicker process without this waiting period. Whether it is a good idea or a bad idea, it is the law now. Some potential benefits are that you can continue medical coverage for some plans if the parties frequently cut off of coverage and other times it can help with filing joint tax returns.
To be clear though, anything that is in the actual Agreement (separation/divorce) would become effective and a Court Order on the date the judge approves the Agreement. You do not wait until the Divorce is Absolute or finalized to start the process for the actual Court Order. It only affects the marital status.
