The topic of separation agreements comes up in the context of marital issues between couples in Massachusetts frequently. Below are the three predominant ways in which the decision to pursue a separation agreement arise:

1. The couple is simply looking for time apart and realize that they will divorce at some time in the near future but need a solution for the interim
2. The couple knows they wish to divorce and can agree on how to deal with the many issues each may have; or
3. The couple start out with a contested divorce and then later decides to settle by putting down the terms of that settlement in a separation agreement.

This article is written to help Massachusetts residents or others understand the nature of a separation agreement, please read below to gain a deeper understanding into what goes into the separation agreement.

The Separation Agreement in Massachusetts

Statement of Facts

In the statement of the facts the parties to the separation agreement outline the facts related to their marriage: where they were married, the names and dates of birth of any children to the marriage, where the spouses last lived together, why they are separating and when such a separation occurred.

Statement of Purpose

This section of the separation agreement is a summary of the issues addressed by the separation agreement, to include:

• custody of children
• parenting schedules
• support provisions for minor children
• health, dental and vision insurance coverage
• whether or not support to one spouse will be paid by another spouse (also includes health, dental or vision insurance)
• how the marital estate (property both real and personal) is to be assigned to either party equitably

In addition to the preceding issues, there are general provisions which the separation agreement will address, including:

Debt Allocation

A separation agreement in Massachusetts should address how the couple will deal with future debt that may be incurred by either party. Failure to indicate how future debt is allocated could result in one party assuming the debt of another as marital debt. For example, let’s suppose that I am the husband, and my wife and I sign a separation agreement that fails to address the issue of how future debt is allocated. Now, suppose that I take on some debt and later claim that because I am still married the debt is marital debt, that is, both parties are responsible to pay the debt. While there is no guarantee that I would be able to make my separated spouse pay for that debt that I acquired while we were separated, I could argue that there was an oral agreement to acquire this debt and that my spouse is liable for the debt. This issues could have been prevented by addressing debt allocation clearly in the separation agreement.

Boilerplate Provisions

A separation agreement must also include multiple boilerplate provisions that address the many concepts of contract law and other legal issues. For example, a separation agreement should contain:

• An Acceptance Clause – a clause which indicates that each party to the separation agreement clearly understands the terms of the contract and that no party has entered into the contract by coercion or duress.
  
• Entire Agreement Clause – the separation agreement must indicate that no oral contract or agreement exists between the spouses which might contradict or otherwise alter the separation agreement.
  
• Disclosures Clause – the separation agreement should clearly explain that each party is not hiding the ball, that is, that each spouse is fully disclosing to the best of their knowledge their current assets, liabilities, etc.
  
• Waiver of Estate – this clause can be used to indicate that neither spouse will attempt to file a claim to the estate of the other from any property to be gained from a will, trust or other means of disposition.
  
• Governing Law – it is key for any contract to clearly state which State’s law governs. So, a separation agreement drafted in Massachusetts would necessarily use Massachusetts law.
  
• Effect of the Agreement – one of the most important clauses in a separation agreement, this clause outlines whether the terms of the agreement will, in part or in whole, survive the agreement as an independent contract or merge with the judgment of divorce entered by the court.

Are you considering signing or entering into a separation agreement in Massachusetts?

If you are looking to draft a separation agreement, sign a separation agreement or have a separation agreement already signed and executed and wish to understand what options you may have to enforce or modify such an agreement contact our offices at 978-273-8337.

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