What is a Separation Agreement?

Think of a Separation Agreement as a contract between you and your spouse that will be used as the basis for determining critical issues that will affect your and your children’s life now and in the future. It is an agreement on the following matters:

• who will take physical care of the children – physical custody
• who will make decisions on legal matters affecting the children – legal custody
• is an alimony award needed?
• how will the home be distributed?
• how will other real estate be distributed?
• how will personal property be distributed?
• who will cover medical insurance for the children or spouse?
• will all provisions in the agreement survive or be merged with the judgment for divorce?

Who Will Take Physical Care of The Children – Physical Custody

The issue of physical custody, as with all of the aforementioned issues, can be resolved in a well-drafted separation agreement between the couple. Sometimes, the answer as to which spouse will have the child or children is clear and simple. Other times, and more often, spouses will want to share physical custody. Drafting the agreement to include the needs of the children involved is critically important at this juncture and should be accomplished in such a way as to make sure that all children to the marriage receive the best possible outcome given the circumstances of each parent involved.

Who Will Make Decisions on Legal Matters Affecting the Children – Legal Custody

Legal custody contemplates which party will make decisions on behalf of the child or children of the marriage. Sometimes, both parties must be consulted when it is practical to do so. At other times, it will be clear that only one party wishes to maintain this aspect of decision making for the child.

Is an Alimony Award Needed?

Alimony, in a Massachusetts divorce, can be awarded by a judge if the parties are unable to agree in a Separation Agreement on the matter of alimony. Sometimes a party to a divorce will foresee the likelihood of an alimony award and decide to include some money in the Separation Agreement simply to get the agreement moving forward. At other times, one party to a divorce wishes to provide voluntarily for the other party and these wishes can be represented in the provisions of the Separation Agreement.

If the matter of alimony proceeds to a judge, due to the inability of the parties to reach an agreement on alimony, a Massachusetts court will generally consider an award of approximately 30-35% of the income earned by the supporting spouse. A judge will consider the amount and duration of an alimony award in Massachusetts based upon the length of the marriage, the age of the parties involved, income levels of the parties, the lifestyle previously maintained by the parties and the ability of the parties to maintain that lifestyle, any lost economic opportunity that may have resulted from the parties support of one spouse during the marriage or while caring for children of the marriage, and possibly any relevant conduct of the parties.

How Will the Marital Home be Distributed?
While Massachusetts is considered a separate property state, rather than a community property state, the marital home is an asset that will generally be distributed equitably under section 34 of the divorce laws in Massachusetts. Real property, that is, a home, can be split up in many different ways by a Massachusetts court. For example, a court may award the parent who will raise the children the home to do so. Or, a court may order the family home to be split equally. Further, it is possible that a court may order the sale of the family residence for the purpose of distributing the proceeds proportionate to the needs of each party as viewed by the court.

Many couples will want to settle these matters in a Separation Agreement to avoid the wild card of having a court decide how proceeds will be distributed.

How Will Other Real Estate Be Distributed?

If left up to a Massachusetts court, the distribution of assets can be a real wild card. While certain trends in distribution are predictable, the court’s perception as to what is “equitable” can vary wildly. I always recommend a Separation Agreement be signed by the parties involved as a means to avoid an uncertain decision by a court.

How Will Our Personal Property Be Distributed?

Here I am including in this category things such as retirement accounts, bank accounts, and other assets. Such personal property, again, will be distributed equitably. While an experienced attorney may be able to state with some conviction how assets will typically be distributed by a court, there is the “wild card” aspect of the courtroom and how evidence is perceived by the court that can drastically change such a prediction. A well drafted separation agreement is preferable to submitting to the will of the court, whenever possible.

Who Will Cover the Medical Insurance for the Children and the Spouse?

The question of medical insurance is often straight forward where one spouse is employed in a steady, well paid career which carries health insurance for the family. Typically, such a spouse will provide for a continuation of the provision of health insurance for the family in the Separation Agreement.

Will All Provisions in the Separation Agreement Survive or Be Merged into the Judgement of Divorce?

There are basically three options with respect to how provisions in the Separation Agreement will be dealt with in the future.

1. All Provisions Survive the Judgment

                If all provisions of the Separation Agreement survive the judgment. This means that after the court has reviewed the Separation Agreement and made its ruling for approval of divorce, the separation agreement, generally speaking, stands alone as the final word on the way that any matters must be dealt with. Though it may be possible to challenge, after the fact, a Separation Agreement in which all provisions have survived the judgment of divorce, doing so successfully will be another matter.

2. All Provisions Merge with the Judgment

                If all provisions of the Separation Agreement Merge with the judgment, this means that the agreement provisions are incorporated with the judgment, and both provisions stand. Taking this stance in a separation agreement allows for either party to bring later changes in circumstances to the court for the purpose of altering previously agreed upon issues.

3. Some Provisions Survive and Some Provisions Merge

                The hybrid Separation Agreement allows for some provisions to merge with the judgment, allowing for a much more easily modified agreement in the future, and for some provisions to stand and survive (making changes to those provisions much more difficult).

This survivability or merger of a given provision in a Separation Agreement is a complex and highly individualized topic best discussed with your divorce attorney in order to determine the best choice to make for a particular provision.

Attorney Gaudet is experienced in the drafting and execution of separation agreements that are reasonable and fair to both parties. The goal in drafting such an agreement is to meet some aspect of the needs of each party, this goal can only be achieved with diplomacy in most cases. Contact our offices to learn what options are available to you in developing a successful Separation Agreement.

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