Divorce vs Separation
The most obvious difference between divorce and separation is that a couple that is merely separated is still technically married to one another, and is not free to get married to someone else. When a divorce is final, and and any legally required waiting period has passed, a divorced person is able to remarry.
What separation means legally differs depending on where a person is. In some states almost all the same things are decided in a legal separation as a divorce. The parties are just unable to remarry.
In Massachusetts, there is not an official proceeding for a legal separation. However, a person who is separated or is getting separated can file for Separate Support. A person will often file for Separate Support when they want to live apart from their spouse, but have not fully committed to the idea of divorce. The request should come with a “justifiable cause,” such as desertion, abuse, or adultery.
It is completely separate from any action that might be taken toward a divorce in the future. Issues such as the division of property or other assets are not included in this process. It merely addresses financial support for the spouse who is filing as well as any children that the couple share. It will also outline a provisional custody or visitation arrangement with the kids.
In order to fill in the gaps and provide some clarity about the questions involves in property division or other issues, some couples will have a post-nuptial agreement drawn up that will indicate suggested provisions that would happen if a divorce were to occur, however there is some legal ambiguity to these agreements and either spouse has the option o challenging those terms if they choose.
If a Divorce Happens
Sometimes couples who separate temporarily are able to resolve their differences and get back together. Sometimes they are both content to stay merely separated because of their personal beliefs or because they don’t intend to remarry anyway. Often, the separation is a precursor to a divorce. In these situations the divorce process will have to be filed starting from square one. No decisions that were made in a separate support ruling carry over into the divorce.
Massachusetts has somewhat different processes depending on whether a divorce is considered a “no fault” or “fault.” There are also different considerations depending in whether or not the divorce is being contested by the other spouse. Contesting usually means that the defendant spouse does not agree with some aspect of what the filing spouse is claiming which may include the divorce grounds, division of assets, or support and custody arrangements.
A No Fault Uncontested Divorce is also known as a 1A divorce, and is the most straightforward of the possible divorce proceedings. If the couple has minor children together they will be asked to attend a parent education class and obtain a certificate. If there are no kids, they can file a joint petition of divorce stating that there is an “irretrievable breakdown” in the marriage. A hearing with a judge determines whether or not this is true. In most cases, the judge will agree and put in an order for a separation agreement. Thirty days after the judge places the order, a Judgement Nisi is activated. The spouses do nothing during this stage, but the courts take the time to verify any financial claims that have been made. It is another 90 days after this that the divorce is finalized, and the parties are free to remarry.
Fault and Contested Divorce
Fault and contested divorces are similar in the way they go through the court system. The plaintiff spouse files for the divorce and the defendant spouse is served a summons. The defendant spouse answers the summons and indicates any counterclaims they wish to make.
After this, the divorce process enters the discovery stage. At this point, financial information is exchanged, various negotiation methods are attempted– normally with the help of attorneys– and each person gathers evidence or witnesses to present in the case of a trial.
In most cases, it is at least six months after the filing date before a hearing can be scheduled to determine the terms of a separation agreement. If both people have not agreed on all issues of the divorce, a trial will be scheduled. The wait for the trial will depend on the backlog in the court. The divorce is final ninety days after the judgement is entered..
Whether you are considering a divorce or a separation, in most situations it is advisable to have a lawyer on your side. At the Infinity Law Group, we can help you through the various processes that are applicable to your situation and help you achieve the best possible outcome for your family. Contact us to set up a free consultation.