Knowledge Base

Unmarried and Separating in Massachusetts? 


November 1, 2012
Written by Halee D. Burg, Esq.

Today cohabitation, a term that refers to couples living together outside of marriage, is a commonplace occurrence. Some couples choose to live together indefinitely; others elect to marry.  And still others end their relationship, often experiencing a difficult and painful breakup.

The dissolution of an unmarried relationship may, in many respects, mirror that of a divorce. Individuals must resolve and attend to some of the same issues spouses must address in divorce.  What is different, however, is that in Massachusetts, cohabitants occupy no recognized legal status.  Thus, as you face the challenging decisions about who goes where and who gets what, except for issues involving children, the legal “rights,” standards and/or guidelines that guide spouses as they navigate divorce do not apply.  Separating when there is a recognizable legal status is difficult enough; separating without such status poses unique challenges.  And while your legal status may be different from that of separating spouses, the anger, sadness, pain and seemingly inevitable tugs of war you experience as your relationship ends are often remarkably similar to those your once married friends or family faced in divorce.

So what happens when you and your significant other part ways?  Who remains in the apartment if only one of you is on the lease?  Is it presumed that you are out if you are not a lessee?  What if you bought a home or condo together and do not have a contractual agreement?  How do you divide household furnishings and other shared personal property, whether purchased jointly, separately or previously owned?  What if you have children together?  Or, if one of you brought a child into the relationship, but the other has become a cherished parental figure in the child’s life, what happens?  What about beloved pets that are often a centerpiece of separation battles?

Through mediation, you and your significant other can work together to address these critical issues and create solutions that will meet each of your goals and needs.  At CMDR, our mediators will guide you through the process of identifying each issue you need or wish to address, and help you clarify what is important for each of you as you all work together to develop, evaluate and select the options that not only closely meet the needs and goals you have articulated, but are also practical and manageable.  Your mediator will endeavor to facilitate a process in which each of your points of view is validated, each of you has the opportunity to generate proposals, and both of you understand the information you need to make decisions.

Consider Jim and Ashley, who lived together for eleven years and had two school-aged children, Sabrina, six and Sam, eight.  Jim and Ashley rented an apartment in Medfield, but because the apartment was originally Jim’s, only his name was on the lease.  While Ashley and Jim each brought some of their own furnishings into the apartment, over the years they purchased a majority of their household goods together.  Routine budgeting was joint.  Jim and Ashley paid monthly expenses through a joint checking account, but each party maintained a separate savings account as well.   Gizmo, Jim and Ashley’s treasured six year old golden doodle that Jim purchased for Ashley shortly after Sabrina’s birth, was a major source of acrimony between them.  Ashley believed Gizmo was hers as a matter of “right” because he was a gift; Jim believed he should keep Gizmo because the children would primarily reside with Ashley.

In addressing matters involving the children, whose paternity Jim had acknowledged at the time of their birth, Massachusetts law provided guidance.  Through mediation, Jim and Ashley agreed that they would share legal custody of Sabrina and Sam, but that Ashley would be the primary residential parent.  Working through the Massachusetts Child Support Guidelines with their mediator, Jim and Ashley examined a variety of child support scenarios, reflecting Jim’s status as the higher wage earner but recognizing that revenues from Ashley’s catering business were increasing steadily. They considered carefully the allocation of the dependency exemptions for the children and agreed that Ashley would waive her right to the exemptions until such time as Ashley’s taxable income was within twenty five percent of Jim’s.  At that time, they would re-examine how to allocate the exemptions between them to achieve the maximal tax savings. Because they wanted to keep Sabrina and Sam in the Medfield schools and their rent was below market, Jim (and his landlord) agreed to substitute Ashley on the apartment lease and Jim would find an affordable apartment either in Medfield or an adjacent town.  As for Gizmo, he would remain with Ashley; however, as long as Jim’s new landlord agreed, Gizmo would accompany the children to his apartment on Wednesday nights and every other weekend when Sabrina and Sam stayed with Jim, and he would stay with Jim when Ashley traveled with the children and when the children spent vacations in town with Jim. 

Jim and Ashley agreed that each one would retain all personal property that he/she owned prior to cohabiting as well as items purchased separately.  In exchange for a cash settlement to Jim approximating the value of his financial contributions to jointly purchased household furnishings, Ashley retained furnishings which were familiar and comforting to the children.

With the assistance of their mediator, Ashley and Jim reached agreement on matters involving health insurance, life insurance, their children’s future education, and how they would address future disputes.  The parenting plan they filed with the court was approved, and they signed the Memorandum of Understanding they reached regarding each of the non-child related issues they had addressed and successfully resolved.   As cohabitants, Jim and Ashley did not have an economic partnership that was recognized by the courts and were not subject to the principle of equitable distribution that governs the dissolution of marriages in the Commonwealth.  Through mediation, however, they reached agreements that they believed were “fair” and “equitable” and met the goals and needs that they each articulated throughout the mediation process.  

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