A Legal Separation: Not in Massachusetts

February 1, 2014
Written by Lynne C. Halem

In the Commonwealth of Massachusetts, individuals who elect to live separate and apart are unable to file in court for a “legal” separation.  They may, if they so choose, file for Temporary Support and Custody Agreements or, if there are no children, for Temporary Support Agreements.  These agreements are just what they purport to be—temporary terms for couples who need a legal definition of their financial exchanges and, if applicable, custodial arrangements during the time that they are living apart. For couples who are proceeding to divorce the temporary orders constitutes an agreement between the parties prior to their submission of a complaint for divorce replete with a formal Separation Agreement, which despite the use of the word “separation”, really means a divorce agreement.

The vast majority of couples, who enter mediation prior to their living separate and apart, do not file Temporary Support and Custody Agreements.  Most feel that they can either reach their own agreements on the terms governing their physical separation or elect to do so in mediation.  For those who come to mediation to craft a living apart agreement do so either because they are unsure whether or not they will divorce or because they are planning to divorce but want to be clear about the financial and custodial terms that they will abide by prior to reaching final agreements to be governed by their “divorce” agreement.

This “first “ group, those who are not sure that divorce is the answer to their problems, needs to be handled with great care.  The mediator must be very careful to help the parties create an agreement that will not “push” them into divorce.  In a sense it is like walking on egg shells.  The mediator needs to anticipate the questions that will help the couple to concentrate on their relationship, to identify areas that will eliminate, as much as possible, conflict and distrust that will inflame the tensions already existing in the marital relationship.  The chances for reconciliation need to be increased by the structuring of financial and custodial arrangements that provide each individual with the freedom to work and reflect on their marital relationship.  As such the mediator needs to explore with the couple the concrete areas that are of concern to them in the short run.  Questions of property division or long term alimony are not at the forefront of the discussion.  The mediator needs to concentrate on the here and now issues, those issues which come up on a daily basis.

For example:

•  How much net income is available?
• What are the budgetary expenses in the marital home and in the residence of the party who has agreed to move out of the home?
• Will the parties pay all expenses from a joint account or from individual accounts or from a combination of the two?
• Will there be a support exchange?  And, if so, how will it be calculated?
• Is each party allowed discretionary spending?  And, if so, is there an agreed upon sum for which neither has to be accountable?
• How will existing debts be handled?  Paid with the minimum required?  Paid down?
• Who will have access to each credit card and charge account and are there terms governing the spending?
• What schedule will be used to manage the children’s time with each parent?
• Where will the children sleep?  Will one or both parents handle the children’s oversight and care?
• Will the parties continue or enter into couples’ counseling?
• Will they date during the separation?  Each other?  Other individuals?
• Is the separation governed by a specific time period?  For example is there a six months living apartment arrangement prior to any discussion of reconciliation?  If they do not reconcile after the agreed upon period, do they extend the time frame or proceed to divorce discussions or leave this decision to be handled after the expiration of the separation period?
• Where will each party live?
• Are furnishings to be purchased for the “new” residence?  How will the furnishings be handled if the couple does not reconcile?  How will the furnishings be paid for?

These are only a smattering of the questions to be considered.  And, of course, the couple is really the source for questions to be answered and issues to be handled.  Some couples already have answers to some questions.  They, for instance, have decided before mediation, where each one will live and how to apportion the children’s time with each parent.  Others have no idea of what areas are best to be covered and what issues may be most unsettling at the time of separation.  It is the mediator’s job to uncover the best route to pursue without “pushing” the couple in the direction of divorce.

Obviously the second group, those who need to settle terms of their separation prior to structuring their divorce agreement, may have to answer some of the same questions.  The focus of the mediation is however different.  Here the mediator tries to limit the time spent on the temporary terms of the actual separation and dedicate the mediation sessions to structuring of the divorce agreement.  The outcome—divorce—has already been determined by the couple and the mediation process needs to focus on the divorce agreement as much as is possible, not wanting to increase the amount of time and money spent on the temporary terms.  Still the mediator needs to be sure that the predivorce time period has not been ignored, leaving the possibility of increasing predivorce tensions and disagreements.

Mediation offers a process to deal with separation terms for couples who hope to reconcile as well as those who plan to divorce.  Clarity and specificity are needed to prevent either group from being plagued by unnecessary dissension.

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