Family Law Information

Disclaimer

The following is provided for informational purposes only. It is not meant to be comprehensive or to be interpreted as legal advice. It also shall not be interpreted in such a manner as to form an attorney-client relationship. For such advice, consult an experienced Family Law attorney.

Separate Support

The principal purpose of an action for separate support is to compel a spouse to furnish support for his or her abandoned spouse and minor children during the term of the marriage and the time that the cause for separation exists. The court that adjudicates an action for separate support cannot dissolve the marriage nor provide for a division of properties. However, the action furnishes a method for either spouse to secure an adjudication on his or her status as an abandoned husband or wife, and in so doing, secure freedom from interference with his or her personal liberty by the other spouse. It also provides a method to determine who is granted custody of the children. Welker v. Welker, 325 Mass. 738, 741, 92 N.E.2d 373, 376 (1950).

Many people believe that it is necessary to file an action for separate support prior to filing for divorce. This is incorrect. The courts liberally apply the term "living separate and apart." Therefore, it is possible to pursue this action in cases of nonsupport while the parties still reside under the same roof.

Common situations when an action for separate support may be appropriate:

1. The situation where a spouse does not want to get divorced but requires a support mechanism for themselves and/or their children
2. Religious objections to divorce
3. When a spouse wants to preserve inheritance rights (particularly older people who will not remarry)
4. Individuals who have hopes of reconciling with a spouse who is undergoing personal difficulties (such as a substance abuse problem)
5. When a spouse does not want to divide property for various reasons (such as maintaining an intact business interest)

Lastly, it should be noted that even though a plaintiff files an action for separate support, the defendant may counterclaim for divorce. Under these circumstances, it is extremely likely that a divorce will be granted (particularly if the counterclaim asserts the grounds of irretrievable breakdown) when the case is finally adjudicated. Thus, the separate support action would become moot.

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