Legal Separation Vs. Divorce In Massachusetts

When you are experiencing relationship difficulties, you may start to consider your legal options. In Massachusetts, there are two main choices for married couples who want to break up: legal separation (known as separate support) and divorce. In more unusual cases, you may be able to seek an annulment – but most people will choose between separation and divorce. 

The most obvious difference between divorce and separation is that a couple that is merely separated is still technically married to one another, and is not free to get married to someone else. By comparison, filing for divorce signals an intent to end your marriage. When a divorce is final and any legally required waiting period has passed, a divorced person can remarry.

Based in Quincy, Infinity Law Group represents individuals and families in Massachusetts in divorce, child custody, child support, and related family law matters. We help our clients understand their legal rights and options, such as the possibility of filing for separate support versus divorce. If you are contemplating divorce, reach out to our law offices for a free initial consultation with a Massachusetts family law attorney.

What Is Separate Support?

In Massachusetts, there is not an official proceeding for a legal separation. However, a person who is separated or is getting separated can file for separate support. A person will often file for separate support when they want to live apart from their spouse but have not fully committed to the idea of divorce.  Separate support allows you to get financial support for yourself and your family and can prevent your spouse from restricting your personal freedom.

A person can file for separate support if:

• Their spouse has failed to support them;
• Their spouse has deserted them;
• They are living separately from their spouse for“justifiable cause,” or
• They have “justifiable cause” to live apart from their spouse, but are still living together.

 A “justifiable cause” may include things such as desertion, abuse, or adultery.

Separate support is completely separate from any divorce action that might occur in the future. Issues such as the division of property or other assets are not included in this process. It merely addresses financial support for the spouse who is filing as well as any children that the couple share. It will also outline a provisional custody or visitation arrangement with the kids.

To fill in the gaps and provide some clarity about the questions involved in property division or other issues, some couples will have a postnuptial agreement drawn up that will indicate suggested provisions that would happen if a divorce were to occur.  However, there is some legal ambiguity to these types of agreements and either spouse has the option of challenging the terms of a postnuptial agreement if they choose.

Filing for separate support (which is often referred to as a legal separation) may be a good choice in some circumstances, such as if you want to live apart from your spouse but do not want to get a divorce. It may also be the first step towards the ultimate decision to get divorced. If you are considering your options when it comes to leaving your marriage, our experienced divorce attorneys can help you understand your legal rights and choices.

Moving Towards Divorce 

Sometimes couples who separate temporarily can resolve their differences and get back together. Sometimes they are both content to stay merely separated because of their personal beliefs or because they don’t intend to remarry. 

Often, the separation is a precursor to a divorce. Separate support is not part of the legal divorce process in Massachusetts. Instead, a divorce petition must be filed, and no decisions that were made in a separate support ruling carry over into the divorce. You cannot file for both separate support and a divorce at the same time.

Types of Divorce

Massachusetts has somewhat different divorce processes depending on whether it is considered a fault or no-fault divorce  There are also different considerations depending on whether or not the divorce is being contested by the other spouse. Contesting usually means that the defendant spouse does not agree with some aspect of what the filing spouse is claiming which may include the grounds for divorce, property division, alimony, child support, and custody arrangements.

No-Fault Uncontested Divorce

A no-fault uncontested divorce is also known as a 1A divorce. It is the most straightforward of the possible divorce proceedings. With a no-fault divorce, neither party is blaming the other for the breakdown of the marriage. They simply agree that the marriage has irreparably broken down and cannot be repaired.

If the couple has minor children together, they will be asked to attend a parent education class and obtain a certificate. If there are no kids, they can file a joint petition of divorce stating that there is an “irretrievable breakdown” in the marriage. 

A hearing with a judge determines whether or not this is true. In most cases, the judge will agree and put in an order for a separation agreement. Thirty days after the judge places the order, a Judgement Nisi is activated. The spouses do nothing during this stage, but the courts take the time to verify any financial claims that have been made. It is another 90 days after this that the divorce is finalized, and the parties are free to remarry.

Fault and Contested Divorce

A fault divorce is any divorce where one spouse essentially claims that the other person is responsible for the breakdown of a marriage, such as for adultery, domestic violence, or desertion. A contested divorce includes any divorce – including a no-fault divorce – where the parties do not agree on all aspects of the divorce. 

Fault and contested divorces are similar in the way they proceed through the court system. The plaintiff spouse files for divorce and the defendant spouse is served a summons. The defendant spouse answers the summons and indicates any counterclaims they wish to make.

After this, the divorce process enters the discovery stage. At this point, financial information is exchanged, various negotiation methods are attempted– normally with the help of attorneys– and each person gathers evidence or witnesses in the case of a trial.

In most cases, a hearing will not be scheduled until at least 6 months after a divorce petition is filed to determine the terms of a separation agreement. If both parties have not agreed on all issues of the divorce, a trial will be scheduled. The wait for the trial will depend on the backlog in the court. The divorce will be final 90 days after the judgment is entered.

Whether you are considering a divorce or a separation, in most situations it is advisable to have a lawyer on your side. At Infinity Law Group, we can help you through the various processes that apply to your situation and help you achieve the best possible outcome for your family. Contact us to set up a free consultation.

Weigh Your Options with a Quincy Divorce Lawyer

When you got married, you probably didn’t consider the possibility of your relationship ending. If you are thinking about leaving your spouse, then you should understand the two most common options – separate support and divorce. Our family law attorneys can help you understand the pros and cons of each choice and help you move forward with the appropriate paperwork.

Infinity Law Group represents clients in the greater Boston area who are facing divorce, child custody, child support, and related family law matters. We help our clients choose the path that is right for them by carefully considering their unique situation and advising them on Massachusetts law. To learn more or to schedule a free consultation with a Quincy divorce attorney, give our law offices a call at  617-250-8236 or fill out our online contact form.

Can Anyone File for Separate Support?

No. In Massachusetts, you must meet certain criteria to qualify for separate support. You will need to provide justifiable cause to obtain a separate support order. You do not necessarily need to be living apart from your spouse to file for separate support.

A legal separation – or separate support – is not always the best option. You cannot file for separate support while simultaneously seeking a divorce. If you want to learn more about your rights and options, contact Infinity Law Group to talk to a Quincy divorce attorney.

What Can a Separate Support Order Address?

An order for separate support does not terminate a marriage. It also cannot make a settlement of marital property between the spouses. However, it will address financial support for the spouse seeking the order plus issues related to children such as custody, child support, and parenting time.

The legal standards for setting financial support are different from the standards for alimony in Massachusetts. If you are curious about the differences between separate support/legal separation and divorce, our law firm can help. Reach out to Infinity Law Group today to schedule a free consultation with a Quincy divorce lawyer.

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