Separation agreements allow you to state specifically in your divorce all the things to which you and your spouse agree. That should include details about such things as child support, alimony, asset and liability division, life and health insurance, taxes, and name changes. What you put in the agreement is specific to your situation and your concerns. No two separation agreements are the same.
There are two forms of a separation agreement in Massachusetts. One functions as a contract between you and your spouse, and is binding when you and your spouse sign it; and the other is also binding, but can be changed upon the happening of a “significant change of circumstances”. The first form is called a “surviving agreement” and the second form is called an “incorporated agreement”. That means that the first form survives the Judgment of Divorce and becomes a binding contract, enforceable in Superior Court; and the second form is incorporated in the judge’s Judgment of Divorce and the court has continuing jurisdiction over it.
The court will not allow issues of child support to ‘survive’. In either form of separation agreement, property settlements are virtually impossible to modify, absent fraud or mistake on the part of the spouses. In any case, both forms of separation agreement must be presented to a Probate & Family Court judge to obtain the judge’s approval. Which form of separation agreement appropriate in your case depends on the specific details. A lawyer can best explain and recommend which form is best for you.
If a judge thinks the terms in your separation agreement are unfair or that someone was coerced or induced into sign it, the judge may not approve of it. Further, when children are involved, the separation agreement must be found by the judge to be in “the best interest of the child”, or it will not be approved.
Having legal counsel is important when writing a separation agreement. Many of the issues involved are complicated and the law does change over time. A lawyer can examine your particular needs and situation to determine what is fair.
In Massachusetts, if both parties agree in writing, a lawyer can draw up a separation agreement for both parties. In that case, each party should have the agreement reviewed by his and her own attorney, to be sure that it reflects each party’s wishes, and that it is comprehensive and addresses all of the pertinent issues. Further, mediation is available to most parties, as long as both parties are truthful, communicate fully, and trust each other to work collaboratively on their separation agreement.
Having a written separation agreement is critical to document whatever verbal agreements you may have reached. It best protects your interests in the course of getting a divorce or in a legal separation.
If you have questions and would like to speak with an attorney, please contact our office to schedule an appointment.