Guide to Massachusetts Divorce Separation Agreements
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 will 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
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 both New Bedford and Boston and are standing by to answer your questions and set up your free, private consultation.