Overview of divorce and separation

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Massachusetts Law Reform Institute
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If you do not want to live with your spouse,

  • you can take legal steps to end your marriage, or
  • you can stay married and separate. If you separate, a judge can still order one spouse to give the other spouse child support and money to live.

Your options include:

  • Divorce,
  • Separation and Separate Support,
  • Annulment,
  • Counseling or non-legal action.

The separation of a married couple is not simple. You may also need to think about:

  • Custody of your children,
  • Child support,
  • Parenting time and visitation, and
  • How you are going to split up your property including debts and pensions.

If you are a survivor of domestic violence think about your and your children's safety. You may want an abuse prevention order. Talk about this with your lawyer or with a domestic violence advocate. Some people call an Abuse Prevention Order a restraining order.

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What is the difference between a separation and a divorce?

The main difference between separation and divorce is that divorce ends your marriage. Separation means you are still married, but you do not live with your spouse. You have to go to court to be divorced. You do not have to go to court to be separated. ​

Do I have to go to court or get a divorce if I want to live apart from my spouse?

No. You do not have to get a divorce if you want to live apart. You can stay married and live in different places. You do not have to go to court to be “legally separated” in Massachusetts. It is legal to live apart from your spouse.

You still have to make decisions about money, and child custody and support. If you and your spouse cannot agree, you can ask the judge to decide these things in a Complaint for Separate Support or Complaint for Support.

What is a divorce in Massachusetts?

A divorce is a Probate and Family Court judgment that ends your marriage.

You can file for:

Do I have to live in Massachusetts to file for divorce?

You can only file for divorce in Massachusetts if:

You live here now and:

  • You have lived in Massachusetts for at least 1 year before you file. Or
  • The reason you want a divorce happened in Massachusetts and you have lived in the state as a couple.

You do not need to know where your spouse lives.

What is a no-fault divorce?

To get a “no-fault” divorce, you do not need to prove that your spouse did something wrong or that they caused your marriage to break down. You only need to prove that the breakdown of your marriage is “irretrievable.” It has broken down and it cannot be fixed.

You can file:

  • a Joint Petition where you and your spouse file together. The courts often call this kind of divorce a “1A” divorce, or
  • a Complaint for Divorce where one of you claims the breakdown of your marriage is “irretrievable.” The courts often call this kind of divorce a “1B” divorce. You can file this complaint even if your spouse does not want a divorce.
What is a fault divorce?

To get a “fault” divorce, you must file a complaint that accuses your spouse of doing something legally wrong in your marriage. You must prove specific kinds of legal wrongdoing. 

 

What is an annulment?

Annulments "undo" a marriage by treating the couple as if the marriage had never happened. If one party was not legally able to enter a marriage because, for example, they were already married to someone else, the marriage is "void" from the beginning. If there is some other reason why the marriage should not be recognized, such as fraud, then the marriage is "voidable."

Annulments are rarely granted by the courts. Learn more about annulments.

Do I need a lawyer or can I represent myself?

You do not need to be a lawyer to file a divorce or separate support case. You can file your own case. In Massachusetts, you have the right to represent yourself in any legal case, including divorce and separate support.

However, cases like divorce and custody can be very complicated. The stakes are high. Having a lawyer to help you can be very important, especially if your spouse is violent, abusive, or controlling.

You can also talk to a lawyer 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.

If you have a low-income, you may be eligible for a free lawyer, particularly if there has been domestic violence. Use the Legal Resource Finder to see if you qualify.

If you can’t get a free lawyer, several courts offer Lawyer for the Day programs. These can provide basic legal advice, help you understand laws and your rights, and help you fill out court forms.

Court Service Centers can help you get legal information, fill out court forms, learn about how the court works, and find other resources. They can help you with 1B and fault divorce cases but they cannot help you with joint petitions for divorce.

Also, sometimes you can hire a lawyer for only part of a case. This is called Limited Assistance.

What is the "Automatic Restraining Order?"

When you file a divorce case or a separate support case, the clerk gives you an official court paper, an order called "Automatic Restraining Order."

This kind of restraining order is not about domestic violence. See 209A Restraining Orders. It is about money and property. It is signed by the Chief Justice of the Probate and Family Court. It says you can only use your money and property to pay for reasonable living expenses. You cannot hide or move your money or property. You must follow this order until you get another order from the court about using your money and property.

When you serve the court papers on the defendant, you serve the Automatic Restraining Order at the same time. Once you have served the Automatic Restraining Order it will also apply to the defendant. That means that the defendant cannot hide or transfer their money or property either, but they can use their money and property for "reasonable living expenses" until they get another order from the court about using their money and property.

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The Court Service Centers can help you fill out Probate Court forms, by Zoom, phone, or in person.

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