The Parts of a Separation or Marital Agreement
A marital or separation agreement is entered into by spouses in the divorce process when these parties are able to come to an agreement on the contested and uncontested issues in the divorce. These documents are complex and acts as contracts, as a contract, a marital agreement must address all of the issues relative to divorce, child custody, visitation, child support and other Massachusetts law. Below, the reader will find a thorough review of the parts of a separation agreement. Click on any of the topic headings below to skip ahead to the specific topic that interests you:
- MASSACHUSETTS ALIMONY
- MASSACHUSETTS CHILD SUPPORT
- CHILDCARE EXPENSES
- MEDICAL/DENTAL EXPENSES
- EDUCATION PROVISIONS FOR THE CHILDREN
- LIFE INSURANCE PROVISIONS
- DIVISION OF ASSETS
- DIVISION OF LIABILITIES
- CHILD CUSTODY AND PARENTING PLAN
Alimony in Massachusetts
Most clients in a divorce want to know, and many are surprised to find out, that alimony still exists. Perhaps this confusion about whether or not alimony is involved in a Massachusetts divorce is best explained by the fact that more couples today have nearly equal earning earnings. At any rate, alimony remains a play in a Massachusetts divorce, and you should be aware of your options.
One option is to waive alimony; sometimes an alimony waiver is advantageous in a divorce. For example, when one party to the divorce is offering something in return for the waiver of alimony, waiving alimony may be a plausible strategy option. Your attorney should be ready to discuss this possibility once they have learned what your specific circumstances are.
Another option involving alimony is not to receive alimony at all. Sometimes, due to the length of the marriage alimony may not be accessible, or perhaps other types of alimony awards are available to the party.
Still, at other times, alimony should be claimed based on the length of the marriage, the effort put into the marriage by one party to support the other or the amount of money earned by one party is much greater than the other; under these conditions alimony is most likely warranted and should be negotiated between the parties attorneys or requested of the judge if the parties cannot agree.
Child Support in Massachusetts
The Child Support Guidelines are what divorce lawyers use to determine what amount of child support a parent will have to pay to the other spouse in a divorce. These amounts vary widely and the final calculation is a mix of income, assets and other considerations. Many times a spouse will hide or underreport income, in such situations it is possible to get a judge in Massachusetts Probate and Family Court to award the other spouse child support based on what the spouse “should” or “could” be earning. In addition, Massachusetts divorce courts will award one spouse child support that deviates from the Massachusetts Child Support Guidelines when a persuasive argument can be made for deviation of the normal child support award.
Other considerations include: who will claim each child as dependents on their taxes, and for how long.
Childcare Expenses in Massachusetts
Another important aspect of the marital agreement will be to answer the question as to which spouse will pay for childcare expenses, will they be split 50/50, or will some other arrangement be made. Expenses that your attorney will consider are camp attendance, transportation, clothing, lessons (swimming, instrument, etc.), drivers ed classes and motor vehicle insurance.
Are the expenses capped – if so, this cap should be considered. It is always wise to have an agreement that considers every possible eventuality, including expenses that might go beyond reasonable expenses in child care or extracurricular activities.
What happens if one former spouse does not wish to agree on the expenses? How is such a disagreement resolved? What happens if one spouse refuses to contribute or reimburse the other for expenses? These and other important questions should be resolved in the marital agreement.
How Will Medical and Dental Expenses be Handled in the Divorce Agreement or Marital Agreement?
Not to be overlooked, uninsured medical and dental expenses can significantly increase monthly expenses. When one or both parties to a divorce are on a budget, failing to anticipate how these expenses will be handled in the marital agreement can be a big problem.
In addition to naming the medical and dental expenses in the agreement, there should be similar caps on these expenses, a mechanism for reimbursement of these expenses, and how to solve a dispute over expenses.
Other than these expenses, it may be helpful to add how emergency and nonemergency treatment of a child is handled. Do the parties need to agree in an emergency, what about for nonemergency expenses incurred or about to be incurred on behalf of the children? Again, all of these issues should be addressed in detail in the martial agreement.
Education of the Child
Important questions remain as to how educational expenses will be split upon divorce. Some marital agreements will require the parents to split the cost of educational expenses, while others will split the cost of education with the child and then the parents. There are still other options which must be addressed to fully provide for the children post-divorce.
Provisions for a child’s education should be contemplated by the estate of one or both former spouses. In addition, the ability of both spouses to consult on the choice of institution should be drafted in most marital agreements.
Life Insurance Considerations
Most Probate and Family Court judges in Massachusetts will want a marital or separation agreement to consider the provision of life insurance by one spouse for either the other spouse or the other spouse and the children post-divorce. While it may be possible to avoid a provision for life insurance in a marital agreement, it is often a good idea since the expense can be minimal while the benefits are obvious.
Asset Division in a Separation/Marital Agreement
Aside from making plans for how the children to a marriage will be provided for, there is perhaps no more important portion of a marital agreement than deciding how assets will be divided. Whether the asset of the marriage are a house, motor vehicles, recreational vehicles, household items, lawn/garden equipment or anything else, these items should be valued and included in the agreement.
The biggest issue in nearly and divorce or separation agreement is who will get the house. Massachusetts Probate and Family Court judges typically, if there are children involved, want to see that the house is going to stay with the children until the children have at least reached 18 years of age or graduated from college, after that, a home is typically sold and the proceeds divided among the former spouses. However, there are other arrangements as to how assets can be divided – contact our offices to have our attorney perform a thorough analysis of your situation and provide you with a consultation.
Disposition of Liabilities in a Divorce
The marital or separation agreement must address who pays for liabilities incurred during the marriage. A typical agreement will leave liabilities as the responsibility of each spouse, in other words, the debt you own in your name remains your own. However, this equitable division of debt becomes less fair when one partner has a huge amount of debt as compared to the other. In such cases, a different calculus must be applied to achieve an equitable result between the parties.
Custody and Parenting Plan in a Separation Agreement
Always key where children are involved in the marriage, the separation agreement must determine who will have legal and physical custody of the children as well as the visitation rights of the parents to the children. Holidays, vacations and special occasions should be added into the agreement so it is clear to each parent what the schedule with the children is on these occasions.
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