Posts Tagged ‘Family Law Communication’

Many couples find themselves in the situation where they desire to separate but do not want to divorce due to religious objections, where a spouse suffers from a substance abuse or other serious personal problem, or a spouse wants to preserve inheritance rights. Many think of legal separation as an alternative. The concept of legal separation is to establish a trial period during which spouses live apart in accord with rights established by the court to while deciding about reconciliation or divorce. However, in Massachusetts, there is no statute providing couples with this option of legal separation as such. Instead, if you wish to separate and have protections under the law, you will need to file for divorce or separate support with the court and live separately based upon the provisions listed in the court’s temporary order. An agreement for a trial separation without filing for divorce must be made outside of court.

In Massachusetts, separate support allows a form of legal separation, most often used by people with a deep religious objection to divorce who feel they can no longer live with their spouse. There are other common situations where separate support may be appropriate when a spouse does not wish to divorce:

When a spouse requires a support mechanism for themselves and/or their children, particularly where one spouse’s income is significantly higher than the others;

When a spouse wants to preserve inheritance rights (particularly older people who will not remarry);

When a spouse hopes to reconcile with a spouse who is undergoing personal difficulties (such as a substance abuse problem); and

When a spouse does not want to divide property for various reasons (such as maintaining an intact business interest).

The principal purpose of an action for separate support is to compel a spouse to furnish support for his or her abandoned spouse and minor children during the term of the marriage and the time that the cause for separation exists. The court that adjudicates an action for separate support cannot dissolve the marriage nor provide for a division of properties. Although the process in many ways looks like a divorce and incurs the same time and expense as a divorce, in the end the spouses remain married. If the decision is then reached to divorce, then you start the process again by filing a new action for divorce.

However, by providing a method for a spouse to obtain a judgment determining his or her status as an abandoned husband or wife, separate support can secure that spouse freedom from interference with his or her personal liberty by the other spouse. It also provides a method to determine who is granted custody of the children.

Many people believe that it is necessary to file an action for separate support prior to filing for divorce. This is incorrect. The courts liberally apply the term “living separate and apart.” Therefore, it is possible to pursue this action in cases of nonsupport while the parties still reside under the same roof.

Lastly, it should be noted that even though a plaintiff files an action for separate support, the defendant may counterclaim for divorce. Under these circumstances, it is extremely likely that a divorce will be granted (particularly if the counterclaim asserts the grounds of irretrievable breakdown) when the case is finally adjudicated. Thus, the separate support action would become moot.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262