Boston Separate Support & Divorce Attorney
The family law firm of Wilkinson & Finkbeiner, LLP is located in Needham, Hingham, Boston and New Bedford on the South Coast. Our attorney’s tenacity, experience, professionalism, and attention to detail are second to none. If you live in Boston, Brookline, Newton or Needham and are looking to hire a family law attorney you must give our office a call before it’s too late. We are available to talk with you directly and our firm offers a free, private consultation to discuss your options in simple language.
In Boston and surrounding areas, call (617) 795-3611.
In Plymouth or Bristol Counties call (508) 316-9720.
You have nothing to lose by calling and meeting with us to discuss your case and circumstances, your options, the probable cost of a case similar to yours, and to discuss how we can help you. There is absolutely no pressure during this meeting; it is purely informational to benefit you.
Separate Support Actions in Boston, Massachusetts
About Newton, MA Separate Support Actions
Newton, Massachusetts is a small city on the outskirts of the great city of Boston, in Middlesex County, home to about 90,000 residents. The city has one of highest income levels per capita of any city in the Commonwealth, as many of its residents work within the city limits of Boston. The official city website for Newton, Massachusetts shows there are over 30,000 households in the city, which is equal to a little over 1% of the total households within the Commonwealth. More than 80% of the population is Caucasian and 13% are of Asian descent.
Our office makes it easy to meet with our expert family law attorneys from anywhere in Eastern Massachusetts, as we have several locations for your convenience. Newton is 7 miles away from Boston is a short train ride on the MTBA, and our office is in the Financial District downtown near the Suffolk County (Boston) Family and Probate Court. We also offer meeting space in or near Newton, in Needham, MA.
The Boston Marathon passes right through Newton, and the famed Heartbreak Hill begins in the city limits. The close proximity to Boston, quiet neighborhoods and excellent schools including Franklin, Zervas, and Williams elementary schools, Newton North and South high schools, and several university campuses including Boston College in Chestnut Hill and Lasell College in Auburndale, make Newton a desirable home.
If you live in Newton and may be participating in a separate support or divorce case, call our office today.
What is Separate Support?
Separate Support in the Commonwealth refers to a type of court action that is filed in the Probate and Family Court, similar to a divorce case. Typically, the primary issue in separate support cases is alimony, which can be paid to either men or women. However, other issues can be addressed in a separate support action.
Separate support actions are typically filed by spouses that do not wish to get divorced.
There are numerous statutes in the Massachusetts General Laws, Chapter 209 that deal with spousal support. M.G.L. ch. 209, Section 32 allows the Family Court judge to order one spouse to pay the other spouse alimony in three different situations:
- when the defendant spouse fails, without justifiable cause, to provide suitable support, or
- when the defendant spouse deserts the plaintiff, or
- when the plaintiff spouse has justifiable cause for living apart, whether or not the parties are actually living apart at the time the action brought.
The amount of a permanent spousal support award is determined by the Probate and Family Court as outlined in M.G.L. ch. 209, Section 32. In Buckman v. Buckman, 176 Mass.229 (1900), the court upheld the constitutionality of the court allowing awards for separate support (i.e. alimony awards not in a divorce case).
After a separate support action is filed, the party wishing to receive alimony may file a motion for temporary orders, in which the court will generally order temporary alimony based on the “guideline” calculator. The court is also obligated to inquire whether health insurance is available to the supported party and will nearly always do so if it is that a reasonable cost to the person that pays alimony.
In a separate action for spousal support, attachments of property and orders for trustee process may be made as part of the support. (M.G.L. ch. 209, Section 33). When one of the married parties has been judicially determined to have been deserted by the other party, the court can allow the deserted party to convey property as if they were the sole owner of the property and the deserting spouse would have no claim to it. (M.G.L. ch. 209, Section 36). Section 32D provides for automatic vesting of title when the court has ordered a deed, conveyance or release of an interest in real estate. If there is property located within Massachusetts, but the parties do not reside within Massachusetts, courts in Massachusetts are allowed to grant the “abandoned spouse” from another state authority sell the property located within Massachusetts. Section 31 of M.G.L. ch. 209 gives the court authority to do this.
It is important to keep in mind that the spousal support allowed by M.G.L. ch. 209 is granted to parties that are married. The existence of a marriage is a jurisdictional prerequisite for the maintenance of an action in the nature of separate support. Justifiable cause for living apart is also a prerequisite for the granting of spousal support. (See Amonte v. Amonte, 17 Mass.App.Ct. 621 (1984)). If the marriage has been dissolved by a valid judgment of divorce, then spousal support under M.G.L. ch. 209 no longer applies. (In that case, an action for support under chapter 208 will apply). The reverse is also true, if a spousal support obligation is ordered by the court and then the parties obtain a divorce, the spousal support obligation under the separate support action terminates once the divorce is final. When the court makes a determination that a party is entitled to spousal support, this is a final determination of the validity of the marriage and neither party is able to litigate the issue of whether a valid marriage existed. It is important to note that Massachusetts does not recognize “legal separation.” In Massachusetts parties are either married or divorced.
There are several factors the court looks at when determining whether a party is entitled to spousal support. M.G.L. ch. 209, Section 32 sets forth a list of factors which the court “shall consider.” However, the court is free to use their discretion when making the final decision. (See LaVallee v. LaVallee, 3Mass.App.Ct. 736 (1975)). Some of the factors include:
- net income, assets, earning ability and other obligations of the obligor;
- number and ages of persons to be supported;
- the expenses incurred by the obligor and the standard of living of the person to be supported;
- the assets and earnings of the person to be supported;
- marriage or remarriage of the person being supported and
- who has custody of the children, if children are involved. The court also should consider the requesting party’s need for the support.
If the requesting party is not in need of the money, it is unlikely that they will be awarded spousal support. It is the Plaintiff’s burden to prove that they need the support and that the parties are living apart from each other. If the court determines that spousal support should be granted to the moving party, the court cannot make the support order too high as to leave the obligor without money to support him or herself. If a party wishes to modify the order of the court, the court again has discretion whether to re-open the case.
For more about alimony and spousal support, click here.
Differences between Separate Support Actions and Divorce
You may be wondering what the difference is between separate spousal support action and a divorce. A divorce judgment terminates the marital relationship while a judgment for spousal support and maintenance leaves the parties still marred to each other. An action for spousal support is an action for relief when the parties are still living separate and apart but no divorce action is pending. (See M.G.L. ch. 209, Sections 30-37). An order for spousal support does not terminate or dissolve the marital relationship. Under the law you and your spouse are still married, which means you cannot remarry, cannot consider yourself single and cannot file as “single” for tax purposes. (See Boyer v. Commissioner, 732, F.2d 191(D.C. 1984)).
For more information about divorce, click here.
Child Support Orders within Separate Support Matters
Separate spousal support not only includes support to one spouse but also support for the children. M.G.L. ch. 209, Section 37 allows a court to order the support of a child for parties seeking separate spousal support. The Child Support Guidelines are presumptively applicable and also provides for health insurance. Depending on the case, child support can be granted to parties who have children ages 23 or younger.
For more information about child support, click here.
Separate Support Cases – Child Custody and Visitation Orders
The court is permitted under the applicable statutes for separate support actions to make child custody and visitation orders. The party seeking child custody and visitation orders must request such orders in their complaint for separate support or in their answer to the opposing parties complaint for separate support. Either party may file a motion for temporary orders requesting that the court make custody orders.
M.G.L. ch. 209, Section 38 mandates that in making orders for custody or visitation of children when the married parents are living apart, the court must consider evidence of past or present abuse of one parent by the other as a factor in determining the best interests of the child.
For more information about child custody and visitation in Newton and Boston, click here.
Domestic Violence Restraining Orders and Separate Support Actions
Restraining orders are also applicable and available under the umbrella a separate spousal support actions. Many times the court also grants orders prohibiting the parties from restraining the personal liberty of the other party. These orders are usually civil in nature however, if the order is violated it becomes a criminal matter. This order is not to be taken lightly and could lead to jail time if violated. When determining whether to grant this order, a judge does a search to see if the Defendant has a criminal record. If the search comes back that the Defendant has a warrant out for their arrest, the judge can contact the local authorities and have that person arrested. In any event, the fact that domestic violence has occurred is an extremely relevant factor in separate support actions.
For more information about domestic violence and 209A actions in Brookline, Needham and Newton, click here.
For more information about separate support actions or divorce, child custody and visitation or support, contact our office today.
We handle many cases in Middlesex County (courthouses are in Woburn and Lowell) and Norfolk County (Canton), as well as Essex County in Salem. We also handle matters in Bristol County, including the New Bedford, Fall River and Taunton courthouses. We also serve all courts in Plymouth County including the Family and Probate Courthouses in Plymouth and Brockton. We have offices conveniently located in Needham, Boston, Hingham and New Bedford.