Legal Separation

Legal SeparationDivorce is a dissolution process where a formal relationship between two parties, regardless of their gender in many states including Massachusetts, is terminated and the marital assets distributed on an equitable basis and the custody of the children, if any, are determined. There can be significant tax issues involved in a marital dissolution and substantial emotional issues regarding the children and the ending of what was once a loving and tight relationship. If you are contemplating a divorce or just want time to examine your options, you may wish to consider a legal separation.

Not all breakups end in divorce since a divorce is highly stressful in most cases. A legal separation can include most elements of a divorce without the formal breakup and ending of most ties, emotional and financial.

Most states including New Hampshire recognize legal separations, but In Massachusetts, there is no such thing as a “legal separation” and the parties need not get permission from the court to live separately or to agree to an arrangement regarding custody and visitation of the children or the payment of child and/or spousal support. However, if you want a formal separation and wish to commit it to a document, it is best for an attorney to draft the agreement for you and to have the court approve it and to issue an order binding the parties to it.

Complaint for Support or for Separate Support

In Massachusetts, if you do not wish to divorce, then you may want to file a Complaint for Support or a Complaint for Separate Support to obtain financial support for your children or for yourself during your separation. The Complaint for Support advises the court of the minor children born of the marriage and that the children are not being adequately provided for by the defendant spouse. A hearing is held to determine what support should be provided to the caretaker spouse.

The Complaint for Separate Support is similar but more comprehensive in that it alleges the defendant is not adequately providing for the children or for the plaintiff spouse without justifiable cause and that the parties are living apart for justifiable cause. The plaintiff spouse can also request formal custody of the children, that a restraining order be issued, and that the principle residence be conveyed to him or her.

Separation Agreements

You can formalize your separation in a separation agreement that is similar to a divorce agreement in all aspects and is binding and enforceable if filed with the court with an order issued committing the parties to its provisions. A typical separation agreement may include the following:

  • Amount of child support
  • Spousal maintenance and for how long it is to be paid
  • Custody and visitation schedules
  • Distribution of assets and debts
  • Who will live in the principal residence
  • Restoration of a spouse’s name before marriage
  • Restraining order if abuse is evident or alleged

There is no requirement that the parties sign a separation agreement but a spouse will be ordered to make child support or spousal maintenance agreements if a Complaint for Support or for Separate Support is filed and the court orders it.

Alternatives to Court

Courts and family advocates are increasingly encouraging alternative dispute resolution measures in divorce matters, which can also apply to separation arrangements. Mediation is the most used and often least expensive avenue to achieving a satisfactory resolution to disputed issues in a divorce or separation case. A neutral party, usually an experienced divorce attorney or retired judge in some instances, will meet with the parties and work with them to compromise on child custody, visitation, spousal maintenance and asset distribution issues. If an agreement is reached, the mediator may want the parties to sign a binding agreement for the court to approve so that any future issues regarding enforceability do not arise.

If you do decide that divorce is warranted, the separation agreement can form the basis for the divorce agreement though you will have to file an entirely new action.

Consult a Divorce Attorney

Although you can certainly draw up a separation agreement of your own, you may not be aware of the tax implications in the transfer or sale of marital assets including pensions and annuities and in the paying and receiving of child support and maintenance. Your agreement may also face issues of enforceability if no court order was issued in conjunction with the agreement. It is always best to consult with a knowledgeable divorce attorney like those from The Law Office of Michael F. Mimno who can properly advise you regarding a legal separation and the implications involved. Contact his office today for a consultation regarding your divorce or separation and your rights and obligations.