Massachusetts Divorce Myths

Whether I am talking to a prospective divorce client from Lexington, Concord, or Milford, here are three of the most common divorce myths that we hear over and over during initial consultations.

1.  “My spouse and I are legally separated”

You may not be living together, but you are not legally separated.

In some states, such as New Hampshire and Rhode Island, married couples are allowed to file a petition with the court for a legal separation. The process and filing fees are often the same as a divorce petition, and the courts will typically decide the same issues it does in a divorce, such as support, custody, visitation, and property division. The difference is that in a legal separation the parties remain married and may resume their martial relationship at any time.

In Massachusetts, despite how many times people tell us that they are legally separated; there is no legal separation. Even after a divorce petition is filed, the parties are not considered to be legally separated. A couple may decide to live separate and apart, but there is no court filing or order to designate them as legally separated.

If a couple desires to separate in Massachusetts but decides not to divorce for religious or other reasons, a person can file a Complaint for Separate Support. In an action for Separate Support, the judge may decide issues concerning minor children and spousal support, however the judge will not address issues surrounding property division. Furthermore, not everyone may be eligible to file a Complaint for Separate Support. You must be able to prove one of the following three grounds:

  1. The other spouse has failed to provide suitable support.
  2. The other spouse has deserted the person filing the action.
  3. That there is justifiable cause for living apart even if the spouses are not currently living apart.

A Complaint for Separate Support may be as time consuming and expensive as a divorce, so consider carefully your options before going this route.

2.    “I have a common law marriage”

Um, no…you probably don’t.

A common law marriage is one where parties hold themselves out as husband and wife and may be deemed to be married without a legal ceremony or marriage license. For example, in Colorado, if parties are over the age of 18 and mutually agree to live as husband and wife and act as a married couple in public, then they may be determined to have a common law marriage.

Here, a couple may not acquire marital rights and responsibilities by living together for a particular period of time or holding themselves out as a married couple. In order to be married in the Bay State, a marriage license and ceremony must be performed. There should also be cake, presents, and intoxicated relatives doing embarrassing things at the reception.

Although a common law marriage cannot be created in Massachusetts, Massachusetts will recognize a valid common law marriage from another state.

3. “If it’s in my name I get to keep it”

You wish.

Even if you bought the house, boat, or summer home in your name, it does not mean that you are entitled to solely retain this item automatically in a divorce.  Massachusetts divides martial property under the concept of equitable division. Briefly, this means that the division of marital property must be fair – and fair does not always mean equal, so 3A would be that we are not a 50-50 state!

For more information about the division of property in Massachusetts at the time of a divorce, please visit the education center of our website by clicking here.

Thus, if you purchased the house in your name during the marriage (or even prior to the marriage) the judge may divide or allocate all property in the event of a divorce, no matter whose name it is under.   There are a number of factors the court considers when dividing property, including: the length of the marriage, conduct of the parties during the marriage, age, health, occupation, amount and sources of income, station (or lifestyle), vocational skills, employability, debts, the opportunities for each spouse to acquire future assets and income, and the needs of the parties. These factors can be found in Massachusetts General Laws c. 208, § 34. 

Do you have questions you need answered about divorce?  Call the divorce attorneys at The Divorce Collaborative to schedule your appointment in our Bedford  or Franklin, MA office.   

By Attorney Katherine Thomas of The Divorce Collaborative (kthomas@divorcecollaborative.com)

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