The difference between a divorce and a separation
In Massachusetts, a divorce legally ends a marriage. A separation is not a divorce, so if two spouses decide to separate and live separate lives, they still remain married. When one or both spouses file a petition for a divorce, there must be a reason, or “grounds”, for the divorce before the court will grant it. No such reason is required for a separation as the court is not involved in making the decision about whether the separation should go ahead or not. However, it may be involved in making decisions about the welfare and custody of the children, if any, and may be asked to legalize a separation agreement between the spouses.
Types of divorce recognized by the state
The Probate and Family Court must see grounds for divorce before granting it. Essentially, there are two main types of divorce. These are:
- no-fault divorce; and
- fault divorce.
No-fault divorces, as the name suggests, are divorces in which neither spouse blames the other: they do not regard the other as “at fault”. The other name for no-fault divorce is “irretrievable breakdown”. There are two types of divorce caused by irretrievable breakdown – 1A and 1B. These are:
- 1A – irretrievable breakdown in which both spouses agree on going through with the divorce. They both sign an affidavit to petition for the divorce and jointly submit a notarized separation agreement which documents what should happen to their joint assets, spousal support and child custody after the divorce has been granted.
- 1B – irretrievable breakdown in which only one spouse files the petition for divorce. In this case, there is no separation agreement as the decision to seek a divorce is one-sided.
A fault divorce is when one spouse blames the other for the break up. This spouse files a petition for divorce citing the reasons for seeking this type of divorce. There are several reasons recognized by the court. These include:
- adultery, i.e. one of the spouses has had a sexual relationship with someone else outside of marriage;
- abusive or cruel physical or mental treatment – the most common reason for a fault divorce;
- excessive intoxication causing emotional distress to the other spouse;
- deliberate neglect or failure to care for the other spouse;
- impotency, i.e. inability to consummate the marriage;
- sentencing to a prison for at least 5 years;
- desertion by one spouse for at least a year.
Is a petition for separation needed for a divorce in Massachusetts?
A prior petition for separation is not needed if the intention is to seek a divorce. Either spouse or both can directly file a petition for a divorce. As has been explained above, a separation agreement is not the same as a petition for separation. The court cannot make any decision about whether two spouses should separate. They are free to do so if that is what they want to do. What the court can do is legalize an agreement between two consenting spouses which sets out what should happen to joint assets, support and child custody after separation. A separate agreement, although not strictly necessary when two spouses decide only to separate and not divorce, has some advantages. It means that if it is legalized by the court, the two separating spouses must keep to the arrangements in the agreement. Not having a separation agreement could be difficult to enforce.
The only time a separation agreement should be made during a divorce is when there is an irretrievable breakdown agreed to by both spouses. As the decision to divorce is mutually agreed to, it is easier to make the agreement, albeit often with the help of an experienced divorce attorney.
In all other types of divorce, only one of the two spouses is actually seeking the divorce, either because they believe the marriage has totally broken down through neither spouse’s fault (although the other spouse may not agree) or because they blame the other spouse for causing the divorce. In these cases, a separation agreement would be practically impossible to make and it may be left to the court to decide the arrangements for asset distribution, child support and custody and alimony.
Why a separation and not a divorce?
There may be several different reasons why two spouses decide to just separate and not go through with a divorce. They may have religious reasons for not seeking a divorce, or think it is better for their children not to divorce or they may be unsure whether a divorce is the right decision to make at that point in time and not wish to make an end to their relationship so permanent. Some spouses may seek a divorce later on, especially if they wish to legally remarry.
Whether a couple just separates or files for a divorce, the same sorts of decisions about their joint lives still have to be made. Do they own a home? If so, is it jointly owned? Is there still a mortgage on it? Should they sell the home or allow one of the two spouses to still live in it? What about all other joint assets? Does one spouse think they have more right than the other to keep some of those assets, e.g. because they were inherited? Are there any debts? If so, who will pay them off? Are there joint children? Who will they live with after the separation? Who will make the decisions about their welfare and upbringing and who will pay for their welfare?
Separation and divorce are serious matters and there are many decisions to be made about life after the separation takes place. While technically there is nothing stopping the two spouses coming to an agreement between them without needing the help of an attorney or the authority of the court, it makes sense to do both. An attorney understands the pitfalls that can occur when an agreement is not clear or equitable enough and the court’s ability to legalize an agreement makes it more predictable and gives more certainty over future arrangements.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.