Ella and Everett have been married for over two decades and have grown children. They are living separately after amicably deciding to go their separate ways. Although neither has any desire to go through the process of divorce, they both would like to file for legal separation.
In Massachusetts, Ella and Everett, along with many other couples who wish to be legally separated, are out of luck. Massachusetts courts do not issue orders of legal separation—so, Ella and Everett are either married or unmarried in the eyes of the law.
Couples may, however, come up with an agreement among themselves which will govern the terms of their living separately. A separation agreement is a contract between two married people which spells out those terms. Typically, the separation agreement might contain the following provisions, among others:
- Identifying information about the couple and brief information about the marriage;
- A clause stating that the parties seek to live separately;
- Clauses determining how the parties will agree to divide their marital property, including real property, personal property, tangible and intangible property;
- Clauses determining whether either party will pay support to the other, and if so, in what amount and for how long;
- Clauses regarding custody, support, and visitation of any minor children.
It is essential that any separation agreement be signed after careful consideration of its terms, with clear understanding of the terms, and that both parties sign the agreement willingly, without any indication of duress or coercion. It is also essential that the parties have the opportunity to consult with independent legal counsel before signing.
In addition to signing a separation agreement, in some limited instances the parties might also petition the Probate and Family Court for separate support. Separate support is statutorily provided in three different circumstances:
- When a spouse fails to support his or her spouse suitably, and does so without justifiable cause;
- When one spouse deserts the other; or
- When one spouse has justifiable cause to live apart from the other.
The process of filing for separate support begins with a Complaint, and soon thereafter the parties must file financial statements with the Court and also send to the other party. It must be established that the parties are married and that there is justifiable cause for the parties to be living apart; it is not required that the parties already be separated at the time of filing. The Court has authority to award separate support and/or child support; make custody decisions; and determine whether health insurance must be provided by one spouse for the other and/or for the minor children involved.
If you and your spouse are considering separating, it is advised to consult with a knowledgeable family law attorney. You may schedule a free consultation with our office by calling 978-225-9030 during regular business hours or completing a contact form here, and we will get back to you at our earliest opportunity.
 Mass. Gen. Laws, ch. 209, s. 32
You’ve lived in the greater Newburyport area for any extended period of time, or even just vacationed on Plum Island, you likely are familiar with the pink house off Plum Island Turnpike, heading out to the island past the airport. I know I have driven past it many a time, usually peering at it with curiosity.
What on earth is that house doing over there? Clearly no one lives there now, but when did someone actually live there? It looks like it might have been cute at one point, but it looks fairly dilapidated now. Is there some elderly hoarder in there?? What is it like inside that house anyway?
I know now I am not alone in having these thoughts about that house. I realized that this morning when I read Amanda Hoover’s article on Boston.com. She too wondered as she drove past that house growing up as a child, dreamed of rehabilitating and living there. And she is not the only journalist who’s fancied the property. Kate Bolick, A writer for the New York Times, wrote about the house just last week.
But, as each journalist explained in their respective article, the backstory of this property created even more fascination for me, a Newburyport divorce lawyer. That’s because, as I learned, this house is the product of a 1925 divorce.
The divorce, however, was not well done, at least not for the wife who received this house. This house, which is referred to as a “spite house” was given to the wife by the husband in settlement of the case. While this generally doesn’t happen today, it does happen sometimes and when it does it is part of a grander equitable distribution plan.
In the 1925 case, something clearly went terribly wrong for the wife. From what we know, it appears the wife agreed to settle their case for an exact replica of the marital home, which the parties owned in downtown Newburyport. The husband agreed, the case concluded, and the husband fulfilled his obligation’s in the agreement by building an exact replica of the marital home for the wife.
Just one problem… He built it in the middle of nowhere, in the middle of marshland, without running fresh water. Oops. Used to living in the center of downtown Newburyport, surrounded by businesses, shops, and restaurants, the wife was now left miles away from the bustling town Center, without the utilities to live. The articles do know that there was in fact running water… running salt water. Clearly the husband did not take the high road.
How could this have been avoided? Better drafting. While it is clear in this case, the husband was intent on making the wife’s life needlessly difficult post-divorce. And, he did so in a way that eluded his wife, attorneys on the case, and the judge. Was it foreseeable that he would attempt to do something like this? We simply don’t know at this point. But, the situation highlights the importance of good, unambiguous drafting in separation agreements.
While many family law lawyers would take the position that you simply can’t plan for every possible situation, we are able to include language in settlement agreements to address the unforeseeable. For example, rather than having language that states, “husband shall build wife a house which is a replica of the marital home,” the language could state something like, “The husband shall have constructed a home for the wife in substantial conformity to the marital home. Such property shall be built and situated within the city of Newburyport at a location the wife selects and communicates to husband. The wife shall be limited to plots of land offered for sale and available at a fair market value of $500,000 or less. Wife shall communicate her selection to husband and husband shall effectuate the purchase of said property on behalf of wife and in wife’s sole name, within three months thereafter, immediately recording proof of title at the Essex County Registry of Deeds, and shall immediately apply for all necessary permits, with construction commencing no later than three months following the closing on said plot of land. Husband shall ensure completion of the house within one year from the closing on said land purchase, and the property shall be in substantial conformity with the specifications of the marital home, both in form and function. The Husband shall bear the entirety of any and all costs of acquisition and construction of the property, including all ancillary fees and costs and shall receive said property without lien, mortgage, or other encumbrance, and the husband shall indemnify and hold wife harmless against any such instance or related debt. Husband shall ensure the project is fully completed, including the connection of all utilities, and that all usual and customary filings of completion shall be completed by husband on behalf of wife. The party shall reasonably cooperate to effectuate this provision, and may submit any disagreements in interpretation or compliance with this provision to the Essex County probate and Family Court for determination.”
When you represent a client from the beginning of the case through its conclusion, you learn a lot about the individual parties, their children, and the relationship. A good lawyer has the ability to foresee problems and draft a settlement agreement eliminating them. As we have heard many times before and as was highlighted by that little pink house, the devil, unfortunately, is in the detail.
Damian Turco is a divorce and family law lawyer practicing in Newburyport, Massachusetts. To schedule a consultation with Attorney Turco, call the Newburyport office at (978) 225-9030.