The divorce process begins when a party files a motion (request) to terminate the marriage. Most couples can reach an agreement before going to court for a hearing, but if you can't, the judge can help you resolve any pending issues. The couple should work together to decide how to handle child custody and visitation, spousal support, property division, and child support. At the end of the divorce process, the court signs the judgment of divorce and terminates the marriage. Both parties are free to remarry and move forward with a life without the other.
Legal separation is like divorce in that the court issues a judgment of separation (like the judgment of divorce), which resolves the divorce-related issues. However, the primary difference between divorce and legal separation is that at the end of a legal separation case, the couple is still legally married, despite living entirely separate lives.
No textbook lists the reasons for or against divorce or separation. Like most relationship issues, the decision to pursue one or the other options depends on the inner workings of the couple. Some couples aren't confident that the reconciliation is out of the picture and divorce is too permanent of an option. For others, separation might be the only way for one spouse to continue using the others' medical insurance information.
Other reasons for choosing a legal separation instead of divorce may include:
Massachusetts doesn't allow a "legal separation" per se, but divorce isn't the only option for couples in the state. Married couples don't need the court's permission to live apart from one another. But, if you need the court's assistance in creating child support, a parenting plan, or spousal support, you can file a petition for separate support and maintenance (2 Mass. Prac., Family Law and Practice § 28:2 (4th ed.).)
When you file your request for separate support you must be a resident in the state, living apart from your spouse, and provide a legal reason—or, grounds—for your request. Unlike divorce, which requires a party to list an irretrievable breakdown of the marriage or a specific, fault-based reason for the application, the only requirement for a spouse asking for separate support is that there is a justifiable reason for living apart, which is a broad standard. (M.G.L.A. 208 § 1A.) For example, if you and your spouse have decided that you can no longer reside together because you have a breakdown in communication, the court will accept it as the reason for your request for separate support.
The court will create a parenting plan, child support orders, and spousal support orders during the legal process for separate support and maintenance. The court may also dictate which spouse will have exclusive use of the marital home during the separation, but judges may not allocate personal or real property unless the couple files for divorce.
A petition for separate support and maintenance is often as expensive and time-consuming as divorce.
A trial separation is a temporary way to test the waters of separation or divorce without asking the court for help. Typically, the couple will agree to a prescribed time limit for the separation, in addition to deciding how to handle custody, visitation, and support issues. Most couples will create an oral agreement, but if you would like a more formal arrangement, you can put your terms and conditions into a written document.
The court doesn't monitor or regulate trial separations, so if either party decides to terminate the separation early, or stop following the terms, the other doesn't generally have much recourse (except to file for divorce.)
At the end of the trial separation, the couple will either reconcile, file for divorce, or pursue a separate support action.
A separation agreement is a contract between both spouses, signed by the judge during a divorce or separate support hearing. The document is legally-binding, meaning it's a court order both parties must follow. It's critical that each spouse agrees to all the terms before signing it. Once you negotiate an agreement, you can present it to the judge for approval. The court will typically approve any arrangement between spouses if it's fair and reasonable to both spouses.
Because legal separation isn't available in Massachusetts, the only issues you and your spouse must consider during a separate support case are child custody and visitation, child support, exclusive use of the marital home, and spousal support.
Whether you are filing for divorce or a petition for separate support, if you have minor children, the court's primary concern is what's best for the children, and this standard doesn't change based on the orders being permanent or temporary. The judge will consider a specific set of factors (best interest factors) to determine the most appropriate parenting plan for your family.
The court prefers for parents to work together to decide what's best for their children. If you and your spouse can negotiate an arrangement that suits each parents' and the child's needs, the court will approve it if it's in the child's best interest. The most critical factor in any case involving children is the health, safety, and general welfare of the children. (M.G.L.A. 208 § 28.)
Divorce and separate support cases can be overwhelming and complicated. If you're not familiar with the law in your state, or if you aren't confident that you can navigate the waters of the ever-changing rules, it might be best for you to seek the assistance of a qualified family law attorney in your area.