How to File for a Legal Separation in Massachusetts

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If you have googled some variant of “legal separation in MA,” you probably came up fairly empty. That’s because in Massachusetts, the legal mechanism that many states recognize as legal separation is called separate support. Separate support is a lawsuit that allows the court to rule on issues like property division, custody of children, visitation, child support and spousal support. Basically, separate support can help decide most of the same legal issues that a divorce in Massachusetts can, but it does not legally end the marriage.

Why Seek Separate Support Instead of Divorce

For many couples who are contemplating divorce in Massachusetts, separation is a necessary step before ultimately reuniting or divorcing. Married couples in this state do not need an order from the court in order to live separately, but during that separation period, they may find themselves in need of a legal document spelling out their rights and obligations regarding issues like child custody or spousal support. Further, couples may no longer wish to live together, but choose to seek separate support in lieu of a divorce for certain reasons – for example, when one spouse needs to stay on the other’s health insurance, when preserving the marriage will keep valuable tax benefits intact, or if religion or cultural tradition prohibits divorce.

What Issues Can Be Addressed in a Separate Support Case

The scope of a separate support case goes beyond simply financial support. Massachusetts General Law lays out the types of relief that a spouse may request.

  1. Spousal support, such as regular support payments or health insurance coverage. Health insurance may be ordered by the court if your spouse has health insurance that can also cover you through a job or at a reasonable cost.
  2. Court orders regarding care and support of your minor children. You can request orders for custody, parenting time and child support.  
  3. Financial relief beyond spousal support, such as wage garnishment, payment of attorney fees or the attachment of property. Attachment of property is a legal process in which the court seizes property. Generally, in divorce or separate support actions, property is seized or assets are frozen for the duration of the lawsuit to ensure that neither party can dispose of it until decisions are made about ownership.
  4. Court orders transferring property to you or authorizing you to use and control property in cases where your spouse abandoned you. Types of property the court may transfer to you include your home, cars and furniture. This may be property that was jointly or individually owned by your spouse.
  5. Protective orders, such as a restraining order or an order for your spouse to vacate your home.
  6. Court orders abolishing surviving spousal rights to property and allowing you to leave that property to someone else in your will. 

What Are the Requirements to File for Separate Support

To file a Separate Support lawsuit, you must be able meet several requirements. You must be married and the opposing party must be your spouse. You must also prove one of the following:

  1. Your spouse has failed to support you without justifiable cause.
  2. Your spouse has deserted you.
  3. You are living apart from your spouse for justifiable cause.
  4. You have justifiable cause to live apart from your spouse, even though you are still living together.

The term justifiable cause includes cruel and abusive treatment, desertion, adultery, addiction, extreme nonsupport or other fault grounds associated with divorce.

How to File a Complaint for Separate Support in Massachusetts

To initiate a lawsuit for separate support, you need to file a complaint. You can get a blank form from the Probate and Family Court or find the form online at Mass.gov. In the complaint, you must list identifying information about you and your spouse, the reason for filing (you were deserted, etc.) and the relief you are requesting (spousal support, child custody, etc.).

Along with the complaint, attach a certified copy of your marriage certificate, which you can get from the Registry of Vital Records. If you are seeking an order pertaining to your minor children, file an Affidavit Disclosing Care or Custody Proceedings and a Child Support Guidelines Worksheet. For requests involving financial issues such as spousal support and child support, include a financial statement. If you have an attorney, your attorney must file a Uniform Counsel Certification Form. All forms can be found online at Mass.gov.

A lawsuit for separate support is generally filed in Probate and Family Court, in which case, you should file the complaint in the county where either you or your spouse live. However, if you have moved but your spouse still lives in the county where you formerly lived together, you must file there. For cases involving only child custody and not spousal support, you can file the complaint in the county where the child or children live. If you are not seeking child custody or the transfer or sale of your home, you can alternatively file a Complaint for Separate Support pursuant to G.L. c.209 section 32F. This type of complaint is not filed with the Probate and Family Court, but instead with the District Court or in the Boston Municipal Court.

When you file a complaint in Probate and Family Court, you need to pay a filing fee of $120 for the fee, surcharge and summons. Other fees may apply depending on the relief you are seeking. If you cannot afford the filing fees, file an Affidavit of Indigency asking the court to waive your court costs. If you choose to file for support in District Court or Municipal Court, there is no filing fee.

What Happens After Filing a Complaint for Separate Support

When you file your complaint, the clerk will issue you a domestic relations summons. You must then arrange to serve the complaint and summons on your spouse. The rules for service are found in Rule 4 of the Massachusetts Rules of Domestic Relations Procedure. In accordance with this law, unless your spouse is willing to receive service directly from you, you must hire a sheriff or constable to serve your spouse with the summons, complaint and a tracking notice. After the sheriff serves your spouse, the sheriff will fill out the part of the summons called the Return of Service. However, if your spouse agrees to accept service directly from you, she can do it by signing the summons in front of a notary public. Either way, after your spouse is served, you must then file the completed, original summons with the court.

After service, both you and your spouse will be required to exchange certain financial documents such as tax returns, bank account statements, retirement accounts and health insurance costs. A judge will generally set a hearing date. Before the date, you and your spouse can file a separation agreement, resolving the requests set forth in your complaint, and asking the judge to approve the agreed-upon terms. If you cannot agree, the judge will consider the evidence and make a ruling.

Separate Support cases in Massachusetts can take months to complete, so if there is an issue that needs to be resolved immediately, such as a request for a protective order or an order to vacate, you should file a motion for a temporary order with the local Probate and Family Court.

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About the Author

Sally Brooks is a writer living in New York City with her chunky toddler and patient husband. She graduated magna cum laude from the University Cincinnati College of Law and her work has been featured in Jurist and the Temple Political and Civil Rights Law Review.