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Marital Separation Questions and Answers

1. What is a divorce?

A divorce is a court judgment ending a marriage. The court requires a "legal reason" for the divorce. In addition to legally ending your marriage, the court looks at other issues which need to be decided before the divorce is finalized.

2. Is divorce my only option?

No. A married person may choose to live apart from his/her spouse, but remain married to him/her, for religious reasons, financial reasons, or for the sake of the children. You may decide to seek a Separate Support Order or a Complaint for Custody.

3. What is the difference between divorce and separate support or a complaint for custody?

The main difference is that a judgment of divorce ends the marriage; a judgment of separate support or custody does not.

Although there are differences between them, a separate support order or complaint for custody can address the same issues as a divorce, for example, custody, visitation, child support, alimony and division of property.

4. What is legal separation?

There is no "legal separation" in Massachusetts. We do have "separate support cases," and "separation agreements." A "separate support" case covers most of the issues separating couples need to think about but does not end the marriage. A "separation agreement" is a written agreement signed by both spouses.

If you complete a "Separation Agreement" (discussed in more detail at question 8 in this section) without filing it with the court, it is nothing more than a contract between you and your spouse. While it may not be a bad idea to have a contract, it may be difficult to enforce; therefore, you probably will want to file your agreement with the court.

5. What issues are settled in a divorce case or separate support case?

Some of the issues that need to be decided in a divorce judgment are:

  1. the grounds (legal reason) for the divorce;
  2. custody of children;
  3. support of children;
  4. visitation with the children;
  5. division of assets (for example, pensions, bank accounts or stocks);
  6. alimony (or support for the spouse);
  7. division of personal property (for example, car or furniture);
  8. what will happen to any real estate;
  9. who gets to live in the marital home;
  10. division of debts (for example, credit cards or electric bills);
  11. name change; and
  12. possibly, an order for protection from abuse.

If these issues are not resolved by agreement of the parties, the judge decides the issues. You get a chance to present evidence that helps her decide.

6. When should I consult a lawyer?

You should speak with an attorney for more information on the differences between divorce, separate support, a complaint for support or a complaint for custody. You may decide to have a written "Separation Agreement" between you and your spouse detailing the decisions and arrangements you have made while you are living apart.

7. Does it cost money to file for divorce or separate support?

Yes, the Probate and Family Court charges fees for filing and handling certain documents. If you are on welfare or your income is 125% or less of the current poverty threshold, the court will probably waive your fees and costs. In order to get the fees and costs waived, you will be asked to fill in and file An Affidavit of Indigency. If your fees and costs are waived this way, you will not have to pay the cost of the sheriff - the court does. Depending on your situation, the court may require additional information and documents from you. They will tell you what information is required.

8. What is a Separation Agreement?

A Separation Agreement is a written agreement between you and your spouse on how matters relating to your marriage will be resolved. The agreement should address custody of children, visits, support of children, property division (including alimony and pensions), what will happen to the martial home, including who will own the real estate, who will live in the marital home, division of debts, change of name, and 209A protective orders. A Separation Agreement is good only if both spouses sign it. It usually is made part of the divorce judgment.

9. What if I don't want a Separation Agreement?

No one can be forced to sign a Separation Agreement. If you are being pressured to sign any document, walk away and consult your own attorney. At the divorce hearing, the judge can refuse to accept an agreement if she believes it is unfair or the product of intimidation or duress.

10. I don't have a separation agreement, but I think I may need one. Can I write it myself?

If you are considering a Separation Agreement, it is a better to consult an attorney. Some of the issues in a Separation Agreement can have far-reaching implications, including tax consequences. It is important that you spend some time on your own thinking about your particular situation and the needs of you and your children if you are a parent. Keep in mind that circumstances change over time. Focus on "the best interests of the children" for now and the future since that is the standard used by the courts in Massachusetts and most other jurisdictions.

You can try to write up your own agreement using the list of issues in question five, but separation agreements are technical, so writing your own is difficult.

Used with Permission and adapted from Northeast Legal Aid http://www.northeastlegalaid.org/

This information is general legal information that may or may not pertain to your particular circumstance. It does not substitute for a consultation with an attorney regarding your specific situation.

 

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This content was last modified on: 04/08/2016

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