My Spouse Wants Me to Sign a Separation Agreement: What You Need to Know

A separation agreement is the contract that settles your divorce. It decides custody and parenting time, child support, alimony, who keeps the house and how everything else is divided. Most Massachusetts divorces end with one, whether the spouses agreed from the start or reached a settlement after months of litigation. Because it’s a contract, and because you’ll live with its terms for years, it pays to understand what’s in it before you sign.

When separation agreements come up

• An uncontested divorce. The spouses agree on everything and file the agreement with a joint petition.
• A contested divorce that settles. The case starts out contested, and the spouses later put their settlement in an agreement, often shortly before a pretrial conference or trial.
• A separation before divorce. Spouses who need to live apart for a while sometimes sign an agreement covering the interim, knowing a divorce is likely.

The judge reviews the agreement at a hearing and must find it fair and reasonable before approving it. Judges usually approve agreements both sides understand and entered into freely.

What the agreement covers

Children

• Legal custody: who makes major decisions about education, health care and religion. Shared legal custody is common.
• Physical custody and the parenting plan: where the children live and a detailed schedule for school weeks, weekends, holidays and vacations. See what is a parenting plan.
• Child support, usually calculated under the Massachusetts Child Support Guidelines, along with who pays for extracurricular activities, uninsured medical costs and, sometimes, college.
• Health, dental and vision insurance for the children.

Provisions about children are always subject to the court’s review. Parents can’t agree away a child’s right to support, and the court can modify custody and support when circumstances change, whatever the agreement says.

Alimony

Spouses can agree to alimony, or agree that neither will pay it. If the court decides, the Alimony Reform Act sets the framework. Under G.L. c. 208, § 53, general term alimony should generally not exceed the recipient’s need or 30 to 35 percent of the difference between the spouses’ gross incomes. Under § 49, for marriages of 20 years or less its length is generally capped at a percentage of the marriage: 50 percent of the months for marriages of 5 years or less, 60 percent for 5 to 10 years, 70 percent for 10 to 15 years, and 80 percent for 15 to 20 years. It can be indefinite for longer marriages. The court considers factors including the length of the marriage, age, health, income and employability, contributions to the marriage, the marital lifestyle and lost economic opportunity.

Property and debt

Massachusetts doesn’t follow a rule that each spouse keeps what’s in their own name. Under G.L. c. 208, § 34, the court can divide all property of either spouse equitably. The agreement should list and divide the marital home, other real estate, bank, investment and retirement accounts, vehicles and personal property. Dividing a retirement plan often requires a separate qualified domestic relations order. The agreement should also allocate existing debts and make clear that each spouse alone is responsible for debt they take on after signing.

Standard provisions that matter more than they look

• Separate status. Each spouse may live as if single, free from the other’s interference.
• Financial disclosure. Each spouse confirms they’ve fully disclosed their income, assets and liabilities. That’s backed up by the sworn financial statements and Rule 410 disclosures each spouse must provide.
• Entire agreement. No side promises or oral agreements change the written terms.
• Waiver of estate claims. Each spouse gives up rights to the other’s estate. This matters because a divorce judgment is first a judgment nisi and doesn’t become absolute until 90 days after it’s entered (§ 21). If a spouse dies during that time, the survivor may still be treated as a spouse under a will or beneficiary designation unless the agreement says otherwise. Update your will and beneficiary designations too.
• Voluntariness. Each spouse confirms they signed freely, understand the agreement, and had the chance to consult a lawyer.
• Governing law and what happens if part of the agreement is found unenforceable.
• Merger or survival, discussed below.

Merger, survival and why it matters later

When the court approves a separation agreement, it’s usually incorporated into the divorce judgment. The agreement then says what happens to each provision going forward:

• Merged provisions become part of the court’s judgment and lose their separate identity as a contract. They’re enforced through a complaint for contempt. Merged terms about alimony can be modified if there’s a material change in circumstances. A division of property, by contrast, generally can’t be modified after judgment, whether it merges or survives.
• Surviving provisions remain an independent contract. They’re very hard to change. A court will modify a surviving term only in narrow circumstances, and a breach can be enforced as a contract claim as well as through the court.
• A mix. Many agreements have the property division survive, so it’s final, while alimony merges so it can be modified later. Child-related terms are always modifiable.

Which provisions should merge and which should survive is one of the most important strategic choices in the agreement. For more, see can a Massachusetts divorce agreement be changed later?.

Before you sign

• Get your own lawyer. Your spouse’s lawyer represents your spouse, not you. Massachusetts courts generally hold people to the contracts they sign, and absent fraud, coercion or duress, “I didn’t understand it” rarely undoes an agreement.
• Make sure disclosure is complete. Don’t sign until you’ve seen the financial information you need. A spouse who hides assets can face sanctions, but it’s far better to find them before signing.
• Read it for the future. Think about how the terms will work as children grow, incomes change, someone remarries or a house is sold.
• Don’t sign under pressure. An agreement signed under duress, coercion or undue influence can be invalid, but proving that later is hard. Take the time you need.

Attorney Gaudet drafts and reviews separation agreements, and helps clients enforce or modify them after divorce. Call 978-273-8337 or contact our office.

About the Author

Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on divorce, separation agreements, custody and support. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.

ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.