We Have Decided to Separate – What Now?

Separation can be a valuable tool for Spouses contemplating divorce because it provides the opportunity to live apart without the daily presence of the other Spouse.  It can help people decide whether it is best to stay in the marriage or end the marriage.  If the Spouses decide they would rather work out their marriage than end it, then separation will be temporary, and the Spouses will reconcile.  Often, however, one or both Spouses will decide that the marriage cannot be reconciled, and that divorce is the best option for the Spouses and their family.  If divorce is necessary and no one takes that final step, the Spouses remain separated for an extended time.

If you are separating and legitimately trying to work on your marriage, then have a timeframe in mind in case a Complaint for Divorce becomes necessary.  If you are separating and/or separated, and you know that the marriage is irreconcilable, do not remain separated indefinitely because you will be foregoing all the protections that are provided when the divorce process begins.

AUTOMATIC RESTRAINING ORDER:

When Spouses decide to divorce, a Complaint for Divorce is filed and served.  The Rule 411 Automatic Restraining Order goes into effect against the Plaintiff when the case is filed, and against the Defendant when that person is served with the Complaint and Summons.  The Automatic Restraining Order prohibits the Spouses from dissipating marital assets, changing beneficiaries and eliminating life and health insurance coverages.  It is enforceable by the Probate and Family Court[1].

SPOUSAL SUPPORT:

Spousal Support a/k/a Alimony is calculated from the date of marriage to the date of service of a Complaint for Divorce.   The Alimony Reform Act of 2011[2] set clear durational limits on payment of Spousal Support:

[T]he number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage.

M.G.L. c. 208 §48

Alimony has clearly defined durational limits based on the number of months married and so long as a Complaint for Divorce has not been filed and served, the “months of marriage” continue to accrue.  This leads to a longer period of Spousal Support exposure.

PROPERTY DIVISION:

Generally, marital assets are assets obtained during the marriage regardless of which Spouse has made the financial contributions.  For example, if a party has a 401K that is changing due to contributions and market changes, that asset will continue to be divisible until the date of divorce.  In other words, during the entire time of separation, the marital assets that increase or diminish remain 50/50 divisible absent some very limited circumstances.  Spouses cannot finalize a divorce until after a Complaint for Divorce has been filed and served or they have created a separation agreement and filed a Joint Petition to Divorce with the Court.

TAXES:

Historically, Alimony is deductible by the payor Spouse and taxable to the recipient Spouse.  In December 2017, Congress passed The Tax Cuts and Jobs Act.  Among the many changes to the Federal Tax Code, this Act changed Alimony substantially.  Specifically, any Alimony order or agreement executed after December 31, 2018 will no longer be taxable to the recipient Spouse and deductible by the payor Spouse.  In other words, Alimony, like child support, will be an after-tax support payment.  For more information, please see the Grossman & Associates, Ltd. Podcast dated January 15, 2018 (https://grossmanltd.com/podcasts/).  In this Podcast, Attorney Hindell Grossman discusses the impact of The Tax Cuts and Jobs Act with Alan Huberman, a CPA and Partner with Blum Shapiro.

If you have questions and would like to discuss your individual situation with a caring and qualified divorce professional, please call Grossman & Associates, Ltd. for a consultation appointment.

For more information, please listen to Episode 22 of our Podcast: Inside Divorce.

Podcast Link: https://soundcloud.com/grossman-associates-ltd-official-youtube-channel

[1] Supplemental Probate and Family Court Rule 411: Automatic Restraining Order

[2] M.G.L. c. 208 §§48-55

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