A Separation Agreement is the document that parties wishing to resolve all the disputes in their divorce case sign and file with the court.
Guide to Separation Agreements
Marital Settlement Agreements, also referred to MSAs or most commonly Separation Agreements, is the mechanism in which to settle and resolve all rights and obligations of spouses looking to separate and/or divorce from their spouse. These marriage settlement agreements are encouraged by the policy of the Commonwealth.
Separation Agreements must be drafted extremely carefully by a seasoned and thoughtful attorney that practices in family law. These agreements carry heavy consequences for a party to a divorce case, and they must be careful to address all issues between parties to a divorce.
Depending on the type of case filed, the court either has to approve of the agreement (if the case is filed under M.G.L.A. c. 208 § 1A where parties file a joint petition) or the parties can withhold the agreement and do not have to file it with the court. If the parties file a joint petition under § 1A and the court does not approve the agreement, “it shall become null and void” and will have no effect between the parties. In other divorce cases not under § 1A, the approval of the court is not needed in order to validate a separation agreement or MSA.
Generally speaking, the court will approve separation agreements, binding the parties, if they are fair and reasonable and not the product of fraud or coercion. However, cases where a marriage settlement agreement will not be approved include when the agreement will cause a spouse to become dependent on the State, or if the settlement agreement is not in the best interests of the parties’ children.
The topics that may be covered by a separation agreement or MSA include:
- Division of property
- Assignment of debt
- Confirmation of property as separate
- Child custody and child support
- Spousal support or maintenance
- Tax issues
- Jurisdiction agreements (i.e. which court will have the ability to make orders in the case)
- Separation date
- Division of retirement assets, including 401k accounts, pensions, and federal retirement plans
How Does the Massachusetts Family Court Determine if a Separation Agreement is Fair and Reasonable?
If two parties to a divorce case resolve their disputes and enter into a written agreement to resolve all issues or some of the outstanding issues in their case, they proffer that Agreement to their family law judge to review and approve. Agreements are proffered to the trial court it is for the purpose of incorporating or merging the agreement into a judgment of divorce, presented as a defense to one party’s request to modify the agreement, or when a party seeks to modify or enforce the agreement.
Generally speaking, the judge will approve the parties’ agreement so long as it is “fair” and “reasonable”. However, many family law litigants ask, “What does Fair and Reasonable mean”? Does that mean fair to both parties? Does there need to be some kind of consideration given if one party gives up certain rights? What if a party gives the other party additional property instead of having to pay spousal support, is that fair? What does “reasonable” mean?
The Court of Appeal in Dominick v. Dominick 18 Mass.App.Ct. 85, 463 N.E.2d 564 (1984) answered this question and set out the list of factors for making the determination of whether a divorce agreement is fair and reasonable:
- Nature and substance of the argument that the party seeking to invalidate the agreement makes;
- Consideration of the financial provisions as a whole;
- Review the context of how the negotiations took place;
- Consideration of the complexity of the issues involved in the dissolution of marriage case;
- Review of the background and knowledge of the parties;
- Review of the experience and abilities of the parties’ respective attorneys;
- Consideration of whether experts assisted either or both parties in reaching their agreement; and
- Reviewing the agreement in light of the mandatory statutory factors for property division and spousal support under M.G.L.A. c. 208, Sec. 34.
If support of children is part of the agreement, the court will also look at the mandatory child support guidelines.
If we have a Written Separation Agreement, will the Judge ask us questions about it?
Yes, the probate and family court judge will ask questions about the Separation Agreement before they approve the agreement at your court hearing. The judge will first review the agreement to make sure that all the provisions comply with the law. If any provisions do not comply with the law, the judge will not approve the agreement.
Then the judge will ask the parties questions about the agreement to ensure it is fair and reasonable. They will make sure both parties have read the agreement and understand it. If there are any waivers of property or alimony, the judge will ask questions about those factors to ensure that both parties are fully knowledgeable about what they agreed to.
Most judges will ask questions relating to the eight (8) fairness factors listed above from the Dominick case, but not always.
Once the judge believes both parties entered into the agreement freely and voluntarily, they will state that finding on the record.
Can a Separation Agreement limit the term for alimony?
Many family law litigants ask whether their marital settlement agreement may contain a provision that will automatically terminate spousal support upon the occurrence of a particular event. The answer is yes. Commonly, parties agree that the following types of events will serve to automatically terminate the court’s power over the issue of spousal support:
- Death of the husband
- Death of the wife
- Remarriage of the supported party
- Cohabitation of the supported party with an unrelated person of the opposite sex with which the supported party has a continuing romantic relationship
- The gross income of the supported party reaches a certain level for any given year
- Upon further written agreement between the parties; or
- Upon further court order.
When alimony is an issue to be included in a separation agreement, it is extremely important that the agreement contain very specific provisions after consulting with a lawyer.
Sample Template Language for Massachusetts Separation Agreements
Statement of facts
The Husband and the Wife were married in , Massachusetts, on ______________, and last lived together on or about , in ______________, Massachusetts.
WHEREAS, serious and irreconcilable differences have arisen between the Husband and the Wife; and
WHEREAS, the Husband and the Wife acknowledge that there has been an irretrievable breakdown of the marriage that cannot be restored for any reason whatsoever; and
WHEREAS, they have agreed that the within Agreement shall be binding upon the Parties effective immediately; and
WHEREAS, it is the mutual desire of the parties to make a final adjustment as to:
a) Child support, custody and visitation with regard to the minor child(ren).
b) What should be paid to the Parties for support and maintenance in consideration of the provisions of Massachusetts General Laws Chapter 208, Section 34 and the terms of this Agreement.
c) The property rights and obligations of each of the Parties, including the division of all real and personal property and debts of the Parties.
d) Whether and to what extent all or any part of the estate of the Husband and Wife should be assigned to the other in consideration of the provisions of Massachusetts General Laws, Chapter 208, Section 34 and all of the terms and conditions of this Agreement.
e) All other rights and obligations arising from the Parties’ marital relationship.
f) All other matters which should be settled in view of the fact that the Parties intend to divorce and live forever apart from one another.
General provisions
The Husband and the Wife declare and acknowledge that each of them understands the position, circumstances, income, financial resources, expenses and prospects of the other, and the terms, provisions and conditions of the within Agreement and that each believes its terms, provisions and conditions to be fair, reasonable and acceptable. The Parties further state that they have negotiated the terms of this Agreement directly or through legal counsel, that each has had an opportunity to obtain independent legal advice by counsel of his or her own choosing, and that after consultation with their respective attorneys and accountants, after being fully and fairly advised as to all facts and circumstances herein set forth, and after having read this Agreement line by line, each freely and fully accepts the terms, conditions and provisions hereof and enters into this Agreement voluntarily without any concern whatsoever.
Each Party has carefully considered the future projected income, financial resources, liabilities and expenses of the other and of themselves, and the within Agreement is executed based upon the said knowledge of each.
Separation
From the date hereof, the Husband and Wife may continue to live separate and apart from one another for the rest of their lives. Each shall respect the privacy of the other.
Waiver of estate claim
Except as provided herein, the Husband and Wife each hereby waives any right at law or in equity to elect to take against any last Will made by the other, including all rights of dower or of courtesy, and each hereby waives, renounces, and relinquishes unto the other, their respective heirs, executors, administrators, and assigns forever, all and every interest of any kind or character which either may now have or may hereafter acquire in or to any real or personal property of the other, and whether now owned or hereafter acquired by either. Neither Husband nor the Wife will seek to be appointed executor or administrator of the other’s estate.
Except as provided herein, the Husband and Wife shall each have the right to dispose of his or her property by Will, or otherwise, in such manner as each may, in his or her uncontrolled discretion deem proper; and neither one will claim any interest in the estate of the other.
Other Standard Provisions
You will want to make sure to include provisions relating to validity and severability (if one part of the agreement is invalid the remainder is still valid), governing law (Massachusetts controls the agreement), and strict performance. Also, you may want to have “merger” provisions.
Custody provisions
The parties agree to shared legal and physical custody with the Husband/Wife being the primary care parent of the parties’ child, date of birth ______________.
The parenting plan for the child shall be as follows: ____________.
Neither party shall move the child out of the Commonwealth of Massachusetts without written permission or a court order.
Child support
Husband shall pay child support to the Wife in the amount of $___ per week.
The parties shall share equally in the following expenses for the child: ___________.
The Husband shall be entitled to claim the child as a dependent for tax purposes.
Healthcare for the child/other party
The child, ______________________________________, date of birth ________________________, ____________, is currently on Husband’s health insurance which is ________________________. Husband will continue to carry Wife on his health insurance so long as the cost remains the same and/or until the Husband’s employer allows coverage. If there is any extra charge, Wife has the choice to either pay the extra coverage or obtain her own health insurance through her place of employment.
Division of Marital Asset and Debts
The parties divide their assets and debts as follows: ______.
Alimony
The __________ shall pay to the ________________ alimony in the amount of $_______________ per week for his/her maintenance. Alimony shall be paid for [amount of time].
Alimony is sometimes tax deductible to the party paying the support and taxable income to the recipient, but only on the state level. Alimony is no longer deductible for federal tax purposes.
Or you may want to include a waiver of alimony.
Notary
You should be sure to have both parties’ signatures notarized for the agreement.
For additional information about divorce, family law, and marital settlement agreements, contact us today by phone or sending us an email. We have offices in Needham, Hingham, New Bedford and Boston and are standing by to answer your questions and set up your free, private consultation.