March 28, 2021

The “Separation Agreement:” A Confusing Name for an Important Document

Among couples who are about to divorce, there is often confusion as to what a Separation Agreement in Massachusetts actually is. So, . . . what is it?

A Separation Agreement is a written document that describes the terms of the divorce. Once signed, it becomes the legal document that will be used for a no-fault divorce in Massachusetts.

For help with having a Separation Agreement in Massachusetts drafted for you and your spouse, click here to schedule a free consultation with a Mediator.

Some of the topics that need to be addressed, in detail, in a Separation Agreement in Massachusetts include:

Property, division of assets, life insurance, vehicles, debts and liabilities, alimony, taxes, living situation, inheritance, and health insurance. If children are involved, the Separation Agreement also needs to address a parenting plan, custody, child support, education, moving, travel, religion, and more.

For a divorce in Massachusetts, a Separation Agreement needs to be signed, notarized, and then filed with the proper Probate and Family Court Department in conjunction with other divorce documents. A Probate and Family Court judge will then review the Separation Agreement and may take various actions. The judge may approve the Separation Agreement if she or he finds it to be fair and reasonable given the circumstances. Or, the judge may ask that parts of the Separation Agreement be clarified or changed. Finally, the judge may reject the agreement if she or he is not satisfied with it and deems it unfair, unreasonable or not written properly.

Once the judge is satisfied with and approves the separation agreement, it will become enforceable by the Court.

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Who can Draft a Separation Agreement in Massachusetts?

• Mediators draft or have Separation Agreements drafted for their divorcing clients. This can be very cost effective because one mediator can draft the document for both parties. Parties can then choose to take the Separation Agreement to court or to have separate family law attorneys review it first. It is not a requirement for Separation Agreements to be reviewed by counsel. Some divorcing spouses choose to have their document reviewed and others do not, cost savings is sometimes the main factor. A reputable divorce mediator in Massachusetts will encourage clients to have the Separation Agreement reviewed by counsel, but the decision to do so ultimately rests with the parties. For a free consultation with a mediator who can assist with the drafting of a Separation Agreement, click here.

• Attorneys also draft Separation Agreements for their clients. “For their clients” is a very important distinction. An attorney cannot represent two divorcing spouses. He or she can only represent one spouse. So, if your spouses’ attorney drafts a Separation Agreement, realize that the lawyer is representing your spouse and not representing you. Therefore it is recommended that you review it carefully and/or find a family law attorney to review it with you. Massachusetts Bar Association Opinion 53, clearly states, “An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation.”

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Parties to the divorce may also draft their own Separation Agreements but for those couples who want to ensure the document is drafted correctly the first time should consider consulting an expert. MWI is available at 617-895-4028 to assist or to provide a free consultation.

Separation Agreements in Massachusetts become very important documents with significant legal standing. Working with the right professional during divorce is vital to ensure that you reach informed decisions that will work for you and your spouse now and in the future.

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