In Massachusetts it is not possible for a married couple to obtain a “legal separation.” However, if a couple is separating or is already separated, a married individual can file what is called a Complaint for Separate Support under Massachusetts General Law Chapter 209, § 32. If the Court enters the requested “separate support judgment,” the parties will still be legally married and cannot marry another individual, but it provides a remedy for one of the spouses to obtain spousal support (alimony and health insurance), child support, or child custody/visitation. The statute does require that there be a “justifiable cause” for the parties to live apart. Justifiable cause may include desertion, abuse, or adultery, though a party is permitted to raise other reasons for separating.
Through the process of separate support judgment described above, a party may also seek an order requiring their spouse to vacate a marital home, the right to convey real estate that is being held jointly as if they were unmarried (in cases of spousal abandonment), prevent the other party from imposing a restraint on a party’s personal liberty, prevent the other spouse from contesting their will or claim a share of intestate property, and file taxes as an unmarried individual. It should be noted that, under federal law, a separate support judgment does not disqualify a surviving spouse from collecting a survivor annuity if the deceased spouse had a qualified retirement plan but died before retirement, even if the decedent named someone else as beneficiary. Additionally, until a divorce has been granted, separated parties are still married and there cannot be a final and permanent assignment of the assets and liabilities.
Finally, if a couple is considering separation, due consideration should be given to whether their circumstances could be better addressed with a post-nuptial agreement or filing for divorce.
For more information, please contact the family law attorneys at Fitch Law Partners, LLP.