The term “separation mediator” in Massachusetts can be confusing because of the many different ways that the words “separate” and “separation” are used in family law and divorce. The terms “separation mediator,” “separate support,” “legal separation”, “separation agreement”, and “date of separation” all have different legal meanings and uses in Massachusetts.
In Massachusetts a “separation mediator” is identical to a “divorce mediator” 99% of the time. The one exception is the rare case when a mediator facilitates an agreement for “separate support,” which does not involve divorce.
A separation mediator is typically a divorce mediation lawyer. To find a “separation mediator near me”, you can use Google to find divorce mediation services near you, keeping in mind that much separation mediation is done over Zoom. That means that you can simply find the best mediator in the state, regardless of where you live.
Whether an attorney or not, a separation mediator must do three things to be successful:
Using a separation mediator is an ideal way to file an “uncontested” or “1A” divorce in MA. In an uncontested divorce, the couple reach agreement on all issues before going to court—the judge merely approves the separation agreement that the couple have created. This allows the couple to customize the agreement to their needs and save time and money. Hiring two lawyers to fight in court—a “contested” or “1B” divorce—takes much longer, costs much more, is less private, and encourages couples to approach each other as enemies.
A separation mediator meets with a couple together and leads them in structured discussions to help them reach decisions about the terms of their divorce. The central three issues to be decided are 1) parenting plan (custody), 2) division of property, and 3) support.
The separation mediator brings up each issue and decision point, one by one, so the couple are not overwhelmed by all the decisions at once. The mediator makes sure that each spouse has the opportunity to talk and be heard. If emotions become heated, the mediator gently guides the couple back to the practical decisions that must be made in getting divorced.
Financial decisions focus on division of property and debts that were acquired during marriage and on possible support. Support can take several forms: alimony, child support, or, for a couple who are not divorcing, separate support.
If the separation mediator is an attorney mediator, he or she then writes the terms of the agreement that the couple have reached into a document called a “separation agreement,” which is the centerpiece of a divorce case. The attorney mediator prepares all other documents needed for the divorce and instructs the couple on where to sign the documents and provides the probate court address where the legal documents should be mailed or dropped off.
The separation mediator does not normally attend the court hearing, which is a 15-minute hearing in which the judge approves the agreement. The judge simply wants to make sure that the couple have read the agreement, understand what is in it, and agree to it. Because the couple themselves made the decisions that are written into the agreement and because the mediator has gone over the agreement with the couple page by page, the divorcing spouses have a much better understanding of their agreement than in cases with competing attorneys.
In Massachusetts there is no legal status called “legal separation,” which is why a MA separation mediator is almost always a divorce mediator. It is not surprising that people often ask about legal separation, because 85% of the 50 states do have legal separation. Massachusetts joins Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas as states where you are either married or divorced. You cannot file for legal separation in those states.
This does not mean that you cannot separate during marriage in Massachusetts—you can separate and live separately—for days, years, or decades–but your legal status remains “married.” You do not need any legal permission or to fill out any legal forms if you want to separate and live your lives separately, but in legal terms you are still married.
Massachusetts does have one legal order that a member of a separated couple can petition the court for. This legal order is for “separate support.” A separate support order can award support from one spouse to the other, establish a parenting schedule, require one spouse to provide health insurance, and even convey property from one spouse to another. Mass Legal Services gives an excellent description of how to file for separate support.
With a separate support order, a couple remain married but there is a court order for one spouse to provide support to the other. Separation mediators are not typically used in separate support cases because one spouse brings a lawsuit against the other to get the support.
Separate support cases have some resemblance to fault divorce cases, in that the plaintiff must prove something in court. In the end, the biggest differences between separate support cases and divorce cases are:
a) There is no final division of property in a separate support case, and
b) The couple remain married with a separate support case.
In Massachusetts, a “separation agreement” is what most people would think of as the “divorce agreement.” The separation agreement has nothing to do with “legal separation” or a couple’s trial separation or temporary separation. It is simply the confusing name that is used for divorce agreements in MA.
Your separation mediator should be able to draft this legal agreement for you. It specifies all the details of:
If you have children;
This separation agreement is the basis of your divorce, and when the judge signs it, the separation agreement is a court order that sets the terms of your divorce.
In Massachusetts, you do not need to be separated in order to get divorced. Many divorcing couples live together until they are divorced or even for a period of time after they are divorced.
Your divorce documents will include a “separation date” but it is only for informational purposes for the court. This separation date is included in your “Joint Affidavit of Irretrievable Breakdown,” a court document where you confirm that your marriage has broken down. The document will include a sentence with a separation date such as, “We were married to one another on 10/15/2000, and separated on 3/15/2021, at Shrewsbury, Worcester County, Massachusetts.”
This is different from other states, which often have laws that require a period of separation either before filing for divorce or before a judge will grant the final divorce. In Louisiana, for example, a couple without children must live separately on a continuous basis for 180 days before a divorce can be finalized; if the couple have children, they must live separately for 365 days. In Vermont, a couple must live “separate and apart” for six months before a judge will issue a divorce order in an uncontested case.
Massachusetts does have a waiting period—90 days for a contested divorce and 120 days for an uncontested—for a divorce to become absolute, or final, but this has nothing to do with whether a couple is living together or separately. This is simply a required “nisi” waiting period after the judge signs the divorce documents. The couple can continue to live together through this waiting period and even beyond the date that the divorce is final.