Ella and Everett, married for over two decades. They now have grown children. They are living separately after amicably deciding to go their separate ways. Neither of them desires to go through the divorce process. However, both would like to file for legal separation.
Ella and Everett, along with many other couples in Massachusetts seeking legal separation, face a lack of options. Massachusetts courts do not issue legal separation orders. Therefore, under the law, Ella and Everett are either in a marriage or not.
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. It outlines the specific terms they agree on. 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 both parties must sign the separation agreement after carefully considering its terms. They should fully understand the terms and sign willingly, without any pressure 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.[1]
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. The parties must establish their marriage and show justifiable cause for living apart. They do not need to be separated when 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.
[1] Mass. Gen. Laws, ch. 209, s. 32