posted by Eric Schutzbank –
A Separation Agreement sets forth the specific terms of what is agreed to by the Parties in resolution to their divorce. These terms might include details about custody, parenting schedules, child support, alimony or spousal support, division of property, taxes, and payment of debts and anything else that needs to be addressed when resolving a divorce by an agreement. In a Joint Petition for Divorce, the Separation Agreement is negotiated and drafted prior to filing. In contested litigation, it is drafted at some point prior to the conclusion of a trial on the merits. A well drafted agreement is specific to the situation and concerns you may have while also addressing the mandatory legal terms.
Separation agreements in Massachusetts have to address whether or not the terms are modifiable by the Court. Some portions function as an independent binding contract that cannot be modified by the Court over the objection of the other party. These portions are known as the surviving provisions of the agreement and usually address things such as property division and debt repayment. Those terms which are modifiable by showing that a material change in circumstances has occurred usually address issues relating to the children, child support and health insurance coverage. These terms are said to merge with the Judgment. One issue that varies depending on the circumstances is alimony which can either merge or survive.
All Separation Agreements must be approved by the Court. If a judge thinks it is unfair or is insufficient or that someone was forced to sign it, he or she may not approve the agreement or will instruct the parties to make changes in certain areas if they want the Court to approve it. Further, when children are involved, the agreement must be seen as in the “best interest of the child” for a judge to approve it.
Divorcing parties often want the lawyer to represent both of them because they have an agreement. This is not permissible because it is an obvious conflict of interest. If the two spouses are in agreement on all issues, then one spouse can retain an attorney to draft the agreement and the other spouse may (but does not have to) hire a lawyer to review it and ensure that the otherwise unrepresented spouse understands all of its terms and obligations. If Parties are close to an agreement or think they can reach one without contested litigation, they should consider participating in Mediation.
If you have questions about drafting or modifying the terms of a separation agreement and would like to speak with an attorney, please contact our North Andover, Massachusetts office to schedule an appointment.