What is a separation agreement? Do I need one?

In a divorce case, you and your spouse may sign an agreement that says how you want to handle things. The agreement is called a "separation agreement." Sometimes the separation agreement is a binding contract between you and your spouse. Sometimes it is not binding until the judge approves it and includes it in the divorce judgment. It all depends on what you and your spouse put in the separation agreement. It is very wise to get legal advice before you sign one.

Separation agreements cover things like:

  • alimony,
  • child support,
  • child custody,
  • parenting time or visitation,
  • what happens to personal property,
  • what happens to the family home,
  • what will happen with taxes,
  • who will pay the debts,
  • change of name, and
  • protective orders (for example, an order that says your spouse cannot go to your house or workplace).

A separation agreement is only good if both spouses sign it. Get advice from a lawyer before you sign a separation agreement that your spouse or his lawyer wrote. Your spouse cannot force you to sign a separation agreement. If your spouse pressures you to sign one, walk away and talk to your own lawyer.

Talk to a lawyer if you think you might want a separation agreement. A separation agreement can affect your life for a long time, and some of the questions are complicated (like taxes). It is important to spend some time thinking about your particular situation, your needs, and the needs of your child if you are a parent. Keep in mind that things change over time. It is better to talk to a lawyer and have the lawyer write up the agreement than to try to write it yourself.

A separation agreement usually becomes part of the divorce judgment. But the judge can refuse to accept an agreement if she believes it is unfair or if she thinks your spouse pushed or forced you to sign it.

Also, the judge will not approve the parts of the separation agreement that affect your children (such as custody) unless she believes that they are in the child's "best interest."

Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last Updated August 2015

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