People often inquire about obtaining a "legal separation" and are surprised to learn that there is not such thing as legal separation in Massachusetts. You do not need court approval to live apart from your spouse. If spouses no longer want to live together, but for varying reasons are not prepared to seek a divorce, they can simply choose to separate. Yet, as it often the case, when one spouse relies on the other financially to meet the needs of the household or children, court action may be required to obtain support if agreement cannot be reached voluntarily between the parties.
In Massachusetts, a spouse has the option to file a "Complaint for Separate Support." The difference between an action seeking separate support and one seeking divorce is that the marriage itself is not terminated by a separate support action. A "Complaint for Separate Support" (found here) can be used to obtain orders for alimony, child support, child custody, provision for health insurance, and conveyance of jointly owned real estate - nearly all the same orders available through a divorce action.
Often, one spouse wants to remain married for religious or moral reasons and opts to file for separate support. However, that spouse then frequently gets served with a Complaint for Divorce filed by the other spouse. The divorce action will win out over the separate support action and the marriage will be terminated if one spouse is able to show that the marriage is irretrievable broken. It takes little more than saying you cannot continue in the marriage to meet the standard of irretrievable breakdown.
Separate support is available to spouses who no longer wish to live together, while keeping the marriage itself intact. Keep in mind that with the state of marriage comes certain rights, such as inheritance rights, rights to be carried on a health insurance policy, and rights to benefits from retirement plans upon the death of one spouse. There are instances when keeping the status of the marriage intact is beneficial. Most often, however, termination of the marriage is the better option.
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