Separation Agreements Explained in Basic Terms
Understanding Separation Agreements in Massachusetts
So What Is A Separation Agreement?
Whether you are going through litigation or working out a divorce case amicably, you will likely come across a separation agreement in Massachusetts. If you and your spouse are choosing to live apart from one another, you may be required to divide property, debts, custody, and/or support. If you and your spouse keep the decision out of court and decide to work things out amicably, separating from one another still becomes a legal process under Massachusetts law.
If you and your spouse do choose to separate, it goes through the same legal process as a divorce would, meaning that if you choose to file for divorce with the court, you can use the separation agreement in lieu of appearing before a judge . If you filed a joint divorce petition with your spouse, you will take both your petition and separation agreement to the court and the court will review both, having both parties waive the hearing in open court.
If you choose to divorce your spouse, with the agreement or without the agreement, and cannot agree to a settlement, the court will divide your property and debt equitably, which does not necessarily mean equally. If you have children, it will also address custody and child support issues. The court will also address those issues in the separation agreement.
Requirements Under Massachusetts Law
There are some very formal legal requirements for a separation agreement in Massachusetts. There are also some basic recommended steps that people take when preparing one. For example, the terms of a separation agreement must be in writing. The parties must sign it as well. In addition, the signatures must be notarized by a public notary (also known as a notary public). There is some case law that suggests that in some cases where one party may be relocating to another country – there may need to be additional steps taken but that isn’t the case for every situation. The actual legal statute can be read at GL c. 208, s. 10.
Essential Elements of Agreement
The separation agreement is the most important document for most divorcing spouses. Either the spouses will use it in a straightforward manner or, much less frequently, it will be used in a more pernicious manner by one spouse or the other. Both parties do best when its terms are fair to both parties. So, what should be included in a separation agreement? A separation agreement almost always contains some or all of the following elements: Division of Assets: The agreement must indicate how the spouses will divide their assets. For example, do they have an equal division of real estate? Do they have half of the pension assets or another portion? Have they in fact divided their assets or merely agreed to do so? As is too often the case, the spouses do not divide their assets and, thus, there is no marital estate to divide and the agreement properly does not deal with the issue. Child Support: The agreement must specify the amount of child support. It must specify how it will be paid, i.e. whether it will be paid weekly or bi-weekly. Issues such as whether child support will terminate upon reaching the age of 18 or some other specified date, such as graduation from high school, and whether there will likely be more than one payor are issues that should be discussed and resolved before deciding how to address them in the separation agreement. Alimony: The amount of alimony should be specified. Note that the statutory presumptively reasonable duration of alimony is now limited to five years. The duration of alimony should be addressed. However, if alimony is nondurational then the agreement really should specify the duration, whether it is seven, ten or some other number of years. Child Custody and Parent Time: The agreement must specify who has physical custody of the children. For the spouse who does not have physical custody, it must indicate how much parent time he or she will have. If the child is old enough, that parent’s preference will be given a fair amount of weight in the decision on this issue. Health Insurance: The agreement should specify how the health insurance coverage is allocated. Will the husband be paying for the wife’s health insurance or will she be using coverage from her own employment?
Advantages of Creating Separation Agreement
A separation agreement will provide a couple both clarity and cost savings. Separation agreements are most useful in cases where there is no contested divorce matter or trial and the parties are able to reach an amicable resolution of the pending legal action. In these circumstances, the equivalent of having a document "just in case" is pretty attractive. A separation agreement basically is an agreement that is incorporated into the divorce judgment. It sets out the parties’ agreed division of debt and assets, alimony and other terms. Separation agreements also provide a great deal of certainty for the parties and their children. This means that each party can feel free to move on after entering into this agreement. Absent a provision in the Massachusetts Separation Agreement addressing the issue, a spouse who moves from the marital home does still have the right to seek alimony once the divorce action is complete.
A Separation Agreement also saves parties money in the long run because it frees them from needing to continue in a costly and protracted legal process. In addition, the resulting agreement from this process could ultimately save the parties money with regard to federal and state tax liability.
Finally and perhaps most importantly, using a Separation Agreement means that the parties can decide for themselves what they feel is best. For example, the parties together could determine what times work for them in terms of custody (with no final parenting plan decision from the Court until the final divorce). In addition, the parties could even agree to begin divorce proceedings but to stipulate that the parties will not consummate the divorce itself for a set period of time (to see if reconciliation is possible).
How to Prepare a Separation Agreement
In Massachusetts, it is wise for a party to a divorce to have a lawyer draft a separation agreement. The agreement must provide for the parties’ children and spousal support, and set forth how each party’s current and future property is to be divided between them. Although a lawyer can incorporate the parties’ agreement into the draft order for the court’s use, it is not a substitute for a lawyer’s drafting.
The separation agreement is a complex, binding legal document that impacts the lives of the spouses for decades. The drafting of the agreement may involve much negotiation and drafting back and forth between the spouses’ lawyers before a final product emerges, so that no circumstances have been overlooked. The final separation agreement must become part of the Judgment of Divorce. Sometimes, it takes effort and time for the parties to reach an agreement. If one or both parties to the divorce desire the guidance of a lawyer, it is important to seek the advice of a lawyer experienced in divorce matters in the initial conversations about the parties’ goals, and during the negotiations. If a party’s interests are complex, more than one consultation may be needed. The cost for a consultation may vary from $200 to over $500 per hour, or more, depending on the lawyer and the issues involved . If the parties don’t want to hire a lawyer, it is possible to obtain a separation agreement kit from an office supply store or on-line. However, there is no substitute for a lawyer’s legal training and experience, and the parties are exposed to much legal risk when they prepare the separation agreement on their own. It is very possible that they will overlook an important topic to be addressed, or incorrectly apply the law. Perhaps have an experienced divorce lawyer draft the first draft of the separation agreement, so that it will be a sound legal instrument when presented to the court. Maybe the parties cannot afford to hire a lawyer. In that case, the parties can also use the family court self-help law computer terminals at the court to obtain information about the process of a divorce. There are also mediation services that claim to save the parties money and time by working with a neutral lawyer who drafts the separation agreement for the parties. However, in a situation in which there are contentious issues, it may prove to be less expensive and time consuming to work with the lawyer in mediating those issues, rather than to have a neutral lawyer mediate the issues and draft the separation agreement.
Altering Separation Agreement
The circumstances of families change over time and there may come a point where a Divorce Agreement (also known as a Separation Agreement) must be modified. Massachusetts General Laws Chapter 208, Section 17, allows for modification of agreements between divorced persons. However, not every agreement is subject to modification. To succeed in a motion to modify a Separation Agreement, the moving party must establish that there has been a material and substantial change in circumstances since the date of the entry of the divorce judgment. The failure of a party to adhere to the Agreement is not grounds for modification because the Agreement itself was the result of a voluntary agreement between the parties.
In a post-judgment modification case, the moving parties successfully obtained a modification of the agreement where the husband’s failure to turn over his 2007 tax return to the wife (which showed an income substantially higher than the husband claimed to the Probation Department and was the basis of the Massachusetts Child Support Guidelines) resulted in an increase in Child Support Guidelines between $1000-$1500 per month. Maluga v. Maluga.
There are also instances where the court will allow a modification based on the existence of a child from any other relationship where Child Support Guidelines will be owed. At the time of divorce, Husband was ordered to pay Child Support for the two children of the marriage. Subsequently, Husband had a third child with another woman who was two months old at the time he moved to modify the Judgment. A modification was granted and Husband’s Child Support was decreased by $250/week, whereupon he began paying child support to the third child in the amount of $250/week, resulting in the same net effect of $0 per week. The Appeals Court found that the Judge correctly used the Child Support Guidelines to assess the appropriate amount of child support and found that it was proper because Husband could no longer afford to pay both the new child support and child support for his two older children. Additionally, since he was ordered to pay child support for the younger child, this revealed that he could no longer afford to pay child support for the two older children. McMahon v. McMahon.
Typical Difficulties and Solutions
A common challenge that many couples face when negotiating a separation agreement in Massachusetts is the division of assets and debts. Couples often have difficulty determining the value of their property, which can lead to disputes over who is entitled to what. Additionally, couples may struggle to find common ground when it comes to dividing their debts. To avoid these issues, it is essential to have a neutral third-party expert, such as an appraiser or financial planner, evaluate the value of the property.
Another significant challenge in separation agreement negotiations is determining a fair amount of alimony or support. Massachusetts law provides specific guidelines for how much money a person should receive, but the decision ultimately lies with the parties involved. Doing a thorough review of the couple’s financial situation can help avoid any disputes.
Finally, it is important to remember that all aspects of a separation agreement in Massachusetts must be enforceable by law. When creating a separation agreement, be sure to fully understand and agree to all the provisions before finalizing any terms.
Helpful Resources for Couples
For those who are contemplating separation or divorce, there is a wealth of resources available in Massachusetts to assist in the understanding and process of creating a separation agreement. For couples beginning the conversation, Mass.gov is a great starting point. The website provides information regarding Family Service and Divorce Court Resources and is a good resource to consult during the beginning stages of the divorce process. For those who wish to stay out of court, online start-up and finish-it divorce services such as Wevorce and DivorceWriter have become more popular. Wevorce is a collaborative divorce software that uses social science research , financial expertise, and modern mediation strategies to help couples settle their own divorce. DivorceWriter is a software package for those early on in the process to create their own divorce "from the ground-up, without hiring a local lawyer". Both services cost a few hundred dollars. Legal aid is a last resort for families needing assistance and for those who are eligible for assistance, legal aid will most likely handle the case. Legal aid offices in Massachusetts include Greater Boston Legal Services, South Coastal Counties Legal Services, and Cape Cod and Islands Legal Services.
