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:

  1. When a spouse fails to support his or her spouse suitably, and does so without justifiable cause;
  2. When one spouse deserts the other; or
  3. 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. 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.

[1] Mass. Gen. Laws, ch. 209, s. 32