What Is Legal Separation
Choosing to walk away from a marriage is a tough decision that some couples need to take. However, opting for a divorce is not their only option as they can also get legally separated depending on the laws of the state they are residing it. A legal separation gives the couple time to think things over by living apart from one another, but it is not a formal dissolution of marriage. However, the process differs from state to state and legal separation is not recognized in some states.
Massachusetts is one state which does not have legal separation, as the couple is allowed to legally stay apart. But, for those couples who want to end their marriage with a divorce, there is a “judgment for separate support”. Spousal and child support, visitation and custody rights of the children are chalked out and assets are clearly divided to avoid conflict later.
Separate Support in Massachusetts
Many states recognize both divorces and legal separations, but Massachusetts law does not recognize the latter. If a couple chooses to separate but does not want to file for a divorce, the state law allows for one spouse to file for a separate support order. The court can grant this to address and mediate the terms of separation including spousal support. A separate support agreement also prevents the partner from putting any restrictions on the freedom of the second partner.
Filing for separate support does not lead to the dissolution of the marriage in Massachusetts, but grants spousal support along with other considerations including children and assets. Custody and visitation of children are issues addressed in the separate support judgment. The standard form and the Complaint for Separate Support must be filed for the initiating the separation proceedings. The support judgment will not lead to marriage dissolution. A separate divorce proceeding will need to be initiated to legally and permanently end a marriage in Massachusetts.
Separate Support vs Divorce
In Massachusetts, a signed divorce agreement formally dissolves a marriage. The divorce frees the couple from all matrimonial ties and each spouse can live separately or choose to get married again without it being a problem. This is what makes it different from a legal separation where while the individuals can lead their own lives without interference from the other, though, they cannot remarry anyone as they are still legally bound to their spouse. They can only date other people or live with them.
Separate support filing is done with a separation agreement, which is a written, notarized document that the spouses agree upon. Child custody and visitation, asset division and alimony are all a part of this document. If one of the parties does not obey the terms, a court can enforce it to make them honor it.
In Massachusetts, the law demands legal grounds upon which the divorce is being sought to be clearly stated. There are seven grounds upon which an at fault or a no-fault divorce can be granted. For the at-fault divorce, reasons such as cruelty, physical and mental abuse, adultery, willful desertion and neglect, substance abuse or imprisonment are the grounds. A no-fault divorce is when both parties mutually agree on an irretrievable breakdown of marriage due to no particular fault of either of them.
Why Choose Separate Support
Choosing to legally separate over getting a divorce has several benefits, which include:
- If legally or morally, either of the spouses is hesitant to get divorced.
- Being married makes one spouse eligible for housing assistance or another government-guaranteed benefit their partner has.
- The spouses can share their health insurance or other insurance benefits if they remain legally married.
- Staying married for a fixed number of years can make a couple eligible for tax benefits.
- The couple thinks there could be reconciliation if they spend some time apart with separate support.
- If either or both the spouses find the divorce agreement more traumatic to negotiate than a separation agreement.
- You don’t fulfil the state’s residency requirement to file for divorce but want to live separately till you become eligible for it.
Grounds for Separate Support
In Massachusetts, separate support can be permitted on the following parameters:
- Your partner has failed to support you.
- You have been deserted by your spouse, with or without reason.
- You and your spouse have been living separately for “justifiable cause”, which includes reasons like abuse, adultery and desertion.
- You and your spouse have “justifiable cause”, related to abuse, adultery, desertion, to live apart but are continuing to cohabitate.
Residency Requirements for Separate Support
If you consider opting for separate support in Massachusetts, a few basic residency requirements need to be met. You can file for separate support if you have lived in the state for at least a year. If you have lived in the state as a married couple, regardless of the current address of your spouse and even if their address is not known, you can file for separation. You are to file the complaint in the court of the county you lived in as a married couple or if either your spouse or you still live in that county. If both of you live in different counties, you may file it in the county where either of you lives.
The Process of Separate Support in Massachusetts
In Massachusetts, this is how you need to file for separate support.
Step 1: Filing for Separate Support
- File a complaint using a blank form from the Probate and Family Court or get it online from gov.
- Identify information about yourself and your spouse, list the reasons for filing for separation (eg. mental or physical abuse, desertion by spouse) and the relief that you are requesting (eg. spousal support, custody of children, etc.).
- Attach a certified copy of the marriage certificate.
- To seek custody of minor children, Affidavit Disclosing Care or Custody Proceedings and a Child Support Guidelines Worksheet need to be filled out and attached, which are available from the county courthouse’s family court department.
- The forms will need the names of children, their birth dates and Social Security Numbers when the children are minors. You will also need to furnish details of the weekly income of parents, and any childcare or medical costs borne by either of the parents.
- Attach a financial statement if you request for spousal support.
- If the filing is being done by an attorney, they must file a Uniform Counsel Certification Form.
Step 2: Issuing Summons to Partner
- After filing the complaint, the clerk will issue a domestic relations summons.
- You must serve the complaint and summons to your spouse which either you can deliver in person or if your spouse is unwilling, you can hire a sheriff or constable who can serve the complaint, summons and tracking notice to your spouse.
- The sheriff will out part of the summons after serving it to your spouse, which is called Return of Service.
- If your spouse agrees to be served by you, they can sign the summons before a notary public.
- After being served, the completed and original summons need to be filed with the court.
Step 3: Court Hearing and Decisions
- You and your partner will need to exchange financial documents like tax returns, retirement accounts, bank statements, and health insurance costs.
- A judge will set a hearing date, before which you and your spouse can draft a separation agreement.
- A judge will rule upon the agreed on terms and if both parties cannot agree, the judge will revisit evidence and pronounce a ruling.
- A motion for a temporary order can be filed before the Probate and Family Court for urgent matters needing mediation such as custody of children as separation hearings can take up to a few months in Massachusetts.
The Cost of Getting Separate Support
For filing a separate support claim in Massachusetts, a complaint is filed in the Probate and Family Court, which requires a fee of $120, for the court fee, summons and surcharge. Other fees can vary depending on the nature of the support you are seeking. If you are unable to afford to pay the filing fees, an Affidavit of Indigency can be filed, asking the court to waive off your costs. If you file for support in the municipal court or a district court, no filing fee is charged. Some courts accept payment only in cash while others can accept cards as well, so you will have to check the payment method at your local court.
For getting information on where the forms must be filed in your state and county, visit the Massachusetts Court System website or consult a local attorney. You will need to produce a certified copy of the civil marriage certificate which can be obtained from the Registry of Records and Statistics. We hope you were able to better understand the requirements for being granted separate support in Massachusetts and how that differs from filing for divorce.
A legal researcher by trade, Steffan serves as the Editor for all of eDivorce’s helpful guides and blog posts. He loves writing about the legal process in an effort to help reduce the complexities of the legal system. Learning from his own personal divorce, he enjoys sharing what has helped him, what didn’t, and how to move on with your life.