Clients commonly ask, "can I be legally separated from my husband (or wife)." The answer to whether or not legal separation can occur (for Massachusetts residents) is yes and no. Confusing? Well, the fact is that legal separation is not available under Massachusetts law, meaning, you can separate from a spouse in Massachusetts without involving the court simply by moving out.
The next question that is often raised among clients is what if I separate from my spouse and I need support. In these cases, spouses wishing to separate from another spouse that require financial support may file what is known as a complaint for separate support or a complaint for support. Filing such a claim in a Massachusetts Probate and Family court will allow the petitioner to attend a hearing with their attorney and demand compensation.
Doing nothing is always an option. Spouses can simply live apart and decide on their own to divide assets, parenting time and visitation, and find other solutions to their marital issues. Taking this tack may be perfectly fine, or on the other hand, one spouse may be making and implementing plans in the background while agreeing, on the surface, to a deal made between the spouses. Only you can determine how genuine your spouse is being, you know them better than your own attorney does. However, keep in mind that many spouses are advised by attorney's to "plan their divorce" so that they are best positioned when they file a divorce complaint.
At other times it may be advantageous to obtain a separation agreement that details the many issues that you wish addressed, including:
Sometimes a separation agreement is very beneficial, typically this is the case where both parties are willing to proceed with a divorce and agree on the disposition of all of the matters mentioned above. At other times, the spouses are at odds with one another, and there is no agreement about how to divide assets, to share parenting time or custody, and a separation agreement under these circumstances is neither possible nor advisable.
When both parties agree to file for divorce, a joint divorce or 1A divorce is the best method in most cases. This option will incur the least expense since your attorney will not have to enter discovery, attend a trial, and typically won't be required to file motions addressing issues in your case. Your attorney will have to file a separation agreement with the court and this agreement will help the court understand how you both wish to address the many issues that will be affected by your separation.
When there is no possibility for the spouses to a marriage to come to any agreement beforehand, most clients will choose to file a 1B or contested divorce in Massachusetts for the purpose of determining how to address the many issues before them. Still, even when filing a 1B or contested divorce in Massachusetts, there are many times that clients will settle before proceeding to trial and will come to terms in a separation agreement that addresses the child custody, parenting time or visitation, alimony, child support, asset division, the marital home and division of debt. The Massachusetts Probate and Family Court has the ultimate say in such cases, and will typically approve a separation agreement where the parties have considered all pertinent issues that affected the marriage and have reasonably and fairly disposed of those issues.
Attorney Gaudet is experienced at family law issues and can steer you in the right direction if you simply have a question on any family law topic or if you have done your homework and know which path you wish to take. We take a holistic and compassionate approach to legal matters, taking the time to understand your unique circumstances, without judgment. We believe that you can only make an intelligent decision when you have been given an informed decision, and an informed decision requires time spent in understanding your situation fully. Call us at 978-273-8337 for more information.
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