Living Apart as Grounds for Divorce in Massachusetts

Divorce is rarely as pleasant a procedure as the marriage that preceded it, although for at least one, and probably both spouses, it may come as a relief, allowing the two people to move on in life.

Marriage is an agreement between you, your spouse and the state. So is divorce. Just like you can’t tell everyone that you are married without actually registering the marriage with a state authority, you can’t just have a divorce without doing it legally. Of course, people don’t always have to be married to have a relationship. Couples can have an amicable and profitable relationship without being married. If they do decide to separate, theoretically separation should be easier than getting a divorce.

There are still things to sort out, of course, like deciding who gets what property, who your children will live with and how you will look after them. One important difference between separating from your partner if you are not married is that there is no need to get approval or consent from the government. You do if you want your marriage to end permanently, though. You must have a divorce, which is in effect a cancellation of the legal agreement that is a marriage.

Even though married couples can go their merry way and separate amicably without having a divorce, most choose not to and persevere with a divorce. That’s because not having a divorce can complicate life further down the track. Getting married again to someone else would technically be illegal. If there is disagreement over the division of property or child custody or spousal support, the court will help decide for you if you are intent on a divorce. There are a whole lot of good reasons why having a divorce is a less messy way of ending a marriage than just separating, even if it seems a burden at the time.

Grounds for a Divorce 

Massachusetts, like most other states, has rules about granting a divorce. You can’t just say you want a divorce without giving a reason. You have to have legitimate grounds for a divorce. There are two main types of divorce in the state. These are fault and no-fault divorces. Fault divorces are those that are due to one of the spouses being “the fault,” i.e. their behavior is the reason for wanting a divorce. No-fault divorces on the other hand are divorces sought when neither spouse is at fault, yet there is recognition from both that there has been an irreconcilable breakdown in the marriage.

The Time Factor in a Divorce in Massachusetts

There is a time factor in a Massachusetts divorce. For a start, you normally can’t just ask for a divorce if you are new to the state. You, or your spouse, need to be a resident of the state to seek a divorce, except in certain circumstances. For example if you wish to seek a no-fault divorce based on mutual separation one of you needs to have been a resident in the state for at least a year prior to seeking a divorce. The one year’s residency is not necessary if you are seeking a divorce based on adultery, cruelty or desertion, must to mention a few examples of fault divorce.

As has been mentioned, one of the most common reasons for seeking no-fault divorce is because you and your spouse have already separated and gone each other’s separate ways. As long as the desire to seek a divorce is mutual, then you can seek a divorce as long as you have proof that you have been separated from each other physically for at least 18 months. By ‘separated’ it means you haven’t been living in the same house, haven’t attempted to get back together and your marriage has basically broken up and neither of you intends trying to keep it going. The 18 months rule is quite strict. If you have had periods when your relationship was off and on, this won’t count as good enough grounds for granting a divorce.

The other way in which time is important is if you have decided to seek a divorce based on ‘desertion.’ This would be regarded as a ‘fault’ divorce, i.e. you have been effectively deserted by your spouse. Whether you wanted the marriage to continue or not, your spouse has called the shots by leaving you without any obvious intention of returning.

For desertion to be used as grounds for divorce, your spouse must have been absent for at least a year. Divorce because of desertion might seem like separation in a no-fault divorce but there are key differences. You are seeking divorce without the consent of your spouse, who is no longer communicating with you. The divorce is not consensual.

Massachusetts courts are quite strict about a divorce based on desertion. There must be intent to leave the spouse. There must be no attempt to support the spouse who remains. If there is a legitimate reason for the separation, it would not constitute desertion.

For example, say your spouse was in the U.S. military, went away from home to fight in Iraq and got captured by the ‘enemy’ and imprisoned, this would hardly be grounds for divorce by desertion. Similarly, if your spouse had gone overseas to work on contract and expects to return at the end of the contract this would also not constitute desertion, even if the length of absence was greater than a year.

The Divorce Process in MA

Having a no-fault divorce is relatively easy. As long as you and your spouse have agreed to get divorced and have sent the 18 months apart, getting a divorce should be straightforward. A fault divorce like desertion, adultery, cruelty etc. may take longer. To seek a divorce based on desertion for example, you would still have to wait for the 12 month separation, then apply for a divorce through the nearest Superior Court to you.

Generally, you apply for divorce in the county you live in or work in. If your spouse is still in Massachusetts, the court gives 30 days for him/her to response. That period extends to 60days for an address in another U.S. state and 90 days if overseas. If there is no response, then the court will go ahead with granting a divorce, which may take up to 30 more days.

Seek the Help of a Massachusetts Divorce Lawyer

If you need help with any aspect of divorce, you should seek help from a Massachusetts divorce lawyer. Contact the Law Offices of Richard Mucci in Winchester MA at 781-729-3999 or use the contact form on the website to arrange a consultation.