Posts Tagged ‘Legal Separation’

broken-homeMany people are under the misconception that they are required to “legally separate” before they can get divorced. In most jurisdictions, this is no longer required. If you want to get divorced, you should file for a divorce and not a legal separation. Filing for a legal separation first will only increase the time and expense before the divorce is final.

However, we do run into several recurring situations that lend themselves to a filing of a separate support action (legal separation).

The first and most common situation is when the spouses have separated and one party needs to get support (child support and/or spousal support) from the other – but doesn’t want to file for divorce.

The second common reason is when a spouse has a drug and/or alcohol problem and the spouse filing for legal separation wants to send them a strong message “clean up your act or else”.

Although less common these days, devout Catholics will file for a legal separation because they don’t believe in divorce.

A legal separation should also be considered when the marriage is a little short of ten years. At the ten year mark, a spouse is entitled to one-half of the other spouse’s social security upon retirement (if they haven’t remarried and it’s more than they would be entitled to on their own social security claim).

There can also often be various strategic reasons to file for a legal separation instead of a divorce (such as if the other spouse has a new partner and will probably want to accelerate the divorce process).

Lastly, you should be aware that Courts will usually not divide property as part of a legal separation (although this doesn’t prevent the parties from agreeing to divide property between themselves) and that in most jurisdictions it is possible to counterclaim for divorce when one party files for separate support. Therefore, you might have effectively filed for divorce anyway!

A separation agreement is an agreement between two married people to live apart for an unspecified period of time, perhaps forever. Generally, a separation agreement covers alimony; child support and custody arrangements if there are children; payment of bills and management of separate bank accounts; and may also determine division of property if the separation appears permanent. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

This raises the question of what becomes of the separation agreement upon a judgment of divorce. Separation agreements are said to either “merge” or “survive” divorce, meaning that either the agreement is merged into (becomes part of) the divorce judgment, or, while its terms are incorporated into the divorce judgment, the agreement remains a separate and independent legal contract.

When a separation agreement is “merged” into a judgment of divorce, its terms are modifiable by the court (which retains the power to revise or modify its previous judgment). Thereafter, the “merged” separation agreement has no separate legal standing.

However, when a separation agreement “survives” a decree of divorce, it stands as a contract between the parties and can be enforced in civil proceeding in Superior Court or Probate Court, and any violation of the agreement is enforcible under the contempt power of the Court.

In many cases, it is not as simple as “merge” vs. “survive” as some parts may be treated separately. In almost all circumstances, child related provisions merge and/or change. Property division usually survives. Alimony and, increasingly, health insurance provisions may be handled in a merge.

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