Basic Information About Divorce and Separation

 

1. What is a divorce?

A divorce is a court judgment ending a marriage. The court requires a "legal reason" for the divorce. Grounds or reasons for a divorce are discussed starting at question 13. In addition to legally ending your marriage, the court looks at other issues which need to be decided before the divorce becomes final.

2. Is divorce my only option?

No. Married couples may choose to live apart from each other, but remain married, for religious, personal, or financial reasons, or for the sake of the children. You may decide to seek a Judgment of Separate Support or a Judgment of Support. A Judgment of Separate Support can decide custody.

3. What is the difference between a divorce and separate support?

The main difference is that a judgment of divorce ends the marriage; a judgment of separate support does not end the marriage.
Although there are differences between them, a separate support judgment can address some of the same issues as a divorce, such as custody, visitation, child support, support for one of the spouses.
You file different kinds of papers in court if you are seeking separate support, support, divorce where your spouse was at fault, or divorce where neither spouse was at fault.
For more information about divorce and separation, see these articles in our Self-Help Guide.

4. What is legal separation?

There is no "legal separation," in Massachusetts. You do not have to get court permission to live apart from your spouse. It is legal to live apart from your spouse.
We do have "separate support" cases in Massachusetts.  To get a Judgment for Separate Support or a Judgment for Support, you file a Complaint for Separate Support or a Complaint for Support.
In Massachusetts, spouses can make "separation agreements."  A "separation agreement" is a written agreement signed by the husband and wife.
If you complete a "Separation Agreement" (discussed in more detail in question 8) without filing it with the court, it is a contract between you and your spouse. It is not a court order.  While it may not be a bad idea to have a contract, it may be difficult to enforce; therefore, you probably will want to file your agreement with the court and ask the judge to order you and your spouse to obey it.

5. What issues are decided in a divorce case or separate support case?

Some of the issues that need to be decided in a divorce judgment are:

• custody of children
• support of children
• visitation with the children
• division of assets (for example, pensions, bank accounts or stocks)
• alimony (or support for the spouse)
• division of personal property (that is, who will get which personal property, such as the car or furniture)
• what will happen to any real estate
• who gets to live in the marital home
• division of debts (for example, credit cards or electric bills)
• taking back the name you had before you got married
• possibly, an order for protection from abuse.

If these issues are not resolved by agreement of the parties, the judge decides the issues. You get a chance to present evidence that helps her decide.

6. When should I consult a lawyer?

You should speak with an attorney for advice and more information on the differences between divorce, separate support, and support. You may decide to have a written "Separation Agreement" between you and your spouse detailing the decisions and arrangements you have made while you are living apart.

7. Does it cost money to file for divorce or separate support?

Yes, the Probate and Family Court charges fees for filing and handling certain documents. If you are on welfare or your income is 125% or less of the current poverty threshold, the court is supposed to let you file without paying the filing fee or other basic costs.  That is called waiving fees and costs.
In order to get the fees and costs waived, you must fill in and file An Affidavit of Indigency. If your fees and costs are waived this way, you will not have to pay the fee that the deputy sheriff or constable charges to serve the court papers - the state pays. Depending on your situation, the court may require additional information and documents from you. The court forms tell you what information is required. See How much will it cost to file my divorce? and I cannot afford the fee, can I still file for divorce?)

8. What is a Separation Agreement?

If you are getting divorced, you and your spouse can make a written Separation Agreement that says how matters relating to the end of your marriage will be handled. The agreement should deal with custody of children, visits, support of children, property division (including alimony and pensions), what will happen to the martial home, including who will own the real estate, who will live in the marital home, division of debts, and taking back the name you had before you got married. A Separation Agreement is good only if both spouses sign it. It usually is made part of the divorce judgment.

9. What if I don't want to sign the Separation Agreement?

No one can be forced to sign a Separation Agreement. If you are being pressured to sign any document, walk away and consult your own attorney. At the divorce hearing, the judge can refuse to accept an agreement if she believes it is unfair under the circumstances, that you did not have the opportunity to talk to a lawyer, or signed as the result of intimidation or duress.

10. I don't have a separation agreement, but I think I may need one. Can I write it myself?

If you are considering a Separation Agreement, it is a better to consult an attorney. Some of the issues in a Separation Agreement can have far-reaching implications, including tax consequences. It is important that you spend some time on your own thinking about your particular situation and your needs and your children's needs if you are a parent. Keep in mind that circumstances change over time. Focus on the "best interests of the children" for now and in the future since the "best interests of the child" is the standard used by the courts in Massachusetts and in most other states.
You can try to write up your own agreement using the list of issues in question five, but separation agreements are technical, so writing your own is difficult.

11. If I think I want to divorce, how can I prepare for it?

Divorce is a big decision and should not be made impulsively, recklessly or without a good deal of thought and investigation. As you probably know statistics show that 1 in 2 marriages end in divorce. Gather as much information as you can about divorce. Talk to friends. Ask questions. Read books. Look at other articles on this website. Go to the Probate and Family Court in your county to observe hearings and trials. Most family court proceedings are open to the public.

12. What about counseling?

Divorce cases can be emotionally charged, so it may be a very good idea to seek counseling and support before and/or during the process. Don't wait for your spouse to agree to participate in counseling. Individual counseling can help.
If it is safe and there is no violence in the relationship, parents and children can attend sessions together to help reduce the effects of a divorce or custody dispute on the children and to help the family heal emotionally.
Divorce is often a lonely and emotionally draining experience. By getting support from other people and information (such as the legal information on this website), you can gain some control in the process and the experience can be less painful.

13. Do I need to have a reason to divorce my spouse?

Yes and no. You do need to choose a "grounds," or legal reason, for the divorce that fits your situation. It is sufficient that you and your spouse don't get along any more and don't want to be married any more.

14. What are the different reasons you can use in your divorce?

There are seven "fault" grounds or reasons and also a "no fault" grounds. The "fault" grounds, as the name implies, mean that one person was considered at fault in causing the marriage to end.