Separation agreements

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Massachusetts Law Reform Institute

In a divorce case, you and your spouse may sign an agreement that says how you want to handle things after you get divorced. 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 depends on what you and your spouse put in the separation agreement. It is best to talk to a lawyer before you sign one.

How do I write a separation agreement?

To show the judge that you and your spouse agree, you and your spouse both sign a Separation Agreement and get it notarized. 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.

The agreement should include your decisions about:

  • How you will provide for custody of your children, 
  • How you will arrange parenting time, 
  • Which of you will pay child support and how much;
  • Whether one of you will pay alimony or spousal support and how much;   
  • Whether one of you will provide health insurance for the other;
  • Whether one of you will provide health insurance for your children;
  • How you will divide your personal property;
  • How you will divide up responsibility for paying your debts;
  • Who will own or live in the home that you lived in while you were married. If this home will be sold, how and when the sale will happen, and how the money will be split;
  • How any other property you or your spouse own together or separately will be handled: who will own it, who will be able to use it, or if it will be sold;
  • Your rights and responsibilities for paying taxes and claiming deductions;
  • Whether one of you will get a protective order (for example, an order that says your ex-spouse cannot go to your house or workplace or cannot call or mail you); and
  • Whether there are any pensions and how they should be divided. 

See a sample separation agreement.

Do I need a lawyer?

You do not need a lawyer to write your Separation Agreement. But an agreement can affect your life for a long time. Some of the decisions are complicated, like taxes. Also, a judge might reject an agreement if it doesn’t cover everything. It is a good idea to get advice from a lawyer before you sign a separation agreement.

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.

How does the judge review a separation agreement?

At your divorce hearing, the judge reviews your separation agreement to be sure it:
deals with all the decisions you need to make, and

  • is fair and reasonable. 
  • The judge will ask if you:
  • read the agreement,
  • think it is fair, 
  • understand it, and
  • signed the agreement of your own free will.

The judge must approve your separation agreement. Once the judge approves your agreement, it becomes an order of the court and a binding contract. If one spouse does not follow the agreement, you can take them to court.

A separation agreement usually becomes part of the divorce judgment. But the judge can refuse to accept an agreement if they believe it is unfair or if they think 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 (like custody) unless they believe that they are in the child's "best interest."

How do I change a separation agreement after the divorce?

If you want to change any of the decisions in the agreement once your divorce is final, you have to go back to court. You will need to file a Complaint for Modification.

Sometimes, some things in the agreement cannot be changed. It depends on the language in the agreement. But usually, things to do with children, such as custody, visitation, and child support, can be changed if your situation has changed. 

This can be complicated. It is best to talk to a lawyer.


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