Contracts Used in Massachusetts Family Law
The law of contracts cannot be escaped, with few exceptions, no matter the type of law. In the field of family law there are many contracts that are used everyday in Massachusetts to document an agreement between couples on any given subject. The Separation Agreement is a very common form of contract that is executed along with the complaint for divorce.
The Separation Agreement
Full Disclosure
Once a complaint for divorce has been filed with the Probate and Family Court, each party will enter the discovery phase of the case. During discovery, each party has the opportunity to gather the necessary information from the other party to make a fully informed decision as to how to draft the separation agreement. For example, during discovery all financial information disclosing assets, liabilities, income and expenses should be given to the opposing party. Court have sanctioned a party to a divorce where that party has not listed assets completely.
Voluntariness
A separation agreement must be entered into voluntarily and without the presence of undue influence or coercion by any party. Where duress, coercion, or undue influence is proved present in the formation of a separation agreement, the agreement will be invalid, unenforceable.
Get Your Own Lawyer
Just as I would not want advice on what a good price for a home would be from the seller of a home I’m interested in buying, I would not want advice on whether a separation agreement is in my best interests from my wife’s lawyer. You are best advised to obtain your own lawyer to work on a separation agreement. There is a general tenet in contract law in Massachusetts which holds that except for instances of fraud the signor on a contract is held to the terms of that contract. For this reason you are best advised to obtain a lawyer that will explain the details of the separation agreement to you.
Separate Status
A section of the separation agreement should state that each party will live separate and apart from one another, essentially, as if they were single, unmarried. This section also should go on to indicate that any debts incurred from the point of execution of the separation agreement forward should not be in the other party’s name. The value of this provision is obvious, as it prevents me (for example) from including my wife in any future debt.
Waiver of Estate
Also critical to the separation agreement is language which clearly waives the right to a spousal share of of the estate. This is because there is a 90-day period, known as the nisi period, where divorce is not final. Technically speaking, a will that left all property to “my spouse” could end up going to a spouse where a divorce was in process but the nisi period had not elapsed. So, if before the 90 day nisi period passed (finalizing the divorce), one spouse died and that spouse had named his wife as the primary beneficiary to 100% of the estate, it is likely that the named beneficiary would receive all of the estate property. One simple way to avoid this technicality is for each spouse to waive their respective share of the estate in this section of the separation agreement.
Will the Separation Agreement be Incorporated, Survive, or Merge?
Now we will go a bit into the weeds to parse out the differences between incorporation, survival and merger as these concepts relate to a Massachusetts separation agreement.
Incorporation
Most agreements which come before the Probate and Family Court in Massachusetts are incorporated into the judgment, which means that the judgment is identical to the agreement (the terms are the same). Once any agreement is incorporated, it must either (a) merge into the judgment of divorce or (b) survive as a separate contract with independent legal significance.
Merged Agreements
An agreement that merges with the judgment of divorce becomes the same as the judgment of divorce, it has no legal separate identity which means that the only recourse for one party against another party to the divorce that has violated the agreement is to seek a holding of contempt. Also, modifications to the original agreement/judgment can be brought before the Probate and Family Court.
Surviving Agreements
When an agreement survives incorporation, this means that the separation agreement remains an independent legal contract (independent of the divorce judgment). Practically, a separation agreement that survives incorporation has the distinction of being enforced separately from the divorce judgment; when the law does not provide a remedy for the divorce judgment. Noncompliance with the separation agreement in this context may be brought to court as a breach of contract lawsuit.
Partial Merger
It is possible for some provisions in the separation agreement to merge into the judgment of divorce and for some to remain as an independent legal contract.
In Summary
A separation agreement is clearly a complex document shaped by Massachusetts case law, and common law. An attorney practicing in family law is the best source for drafting a separation agreement that will reflect the needs and wants of each client while doing so within the bounds of Massachusetts law.
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