When spouses decide to separate in Massachusetts, the family dynamic that once existed will dramatically change. Whereas the parents once shared custody as a single family unit, now they must split that custody and decide how much time they will both spend with the child. Since the spouses are no longer living together in one home and sharing their incomes, they must now support themselves without the other income-earner. Separation brings a need for spouses to deal with matters that involve their children, finances, and property. This is where having a comprehensive separation agreement will make the path to divorce much smoother. The family law attorneys of LaFountain & Wollman P.C. are here to help.
The Basics of Separation Agreements
Massachusetts does not recognize the concept of “legal separation.” Spouses therefore do not have to have a judge’s permission to separate from each other and there is no such thing as filing for separation. But once the spouses decide to part ways, they need to have an agreement in place that dictates how certain matters will be decided.
A separation agreement serves three broad purposes. First, it brings certainty to a number of issues that spouses must immediately deal with, like which parent will have physical and legal custody of the children. Second, it paves the way to the divorce itself and allows the parties to decide matters that a judge would otherwise have to. Third, a separation agreement can save time, money, and stress by avoiding costly and time-consuming litigation.
Altogether, it is to the benefit of both spouses that they work out a separation agreement. This is often accomplished by way of mediation. Mediation is a procedure that usually takes place in the relaxed setting of a law office instead of the courtroom. The mediator, who has no stake in the divorce, cannot compel the spouses to agree to anything; rather, his or her role is to help the parties productively discuss and, hopefully, settle the issues surrounding their divorce.
The goal of mediation is therefore to come up with a separation agreement that is comprehensive and which both parties can live with. Later, the agreement will be submitted to the court for the judge’s review and approval. But this is preferable to litigating over such matters. Mediating a separation agreement can therefore save time, money, and the headache of trial while allowing the spouses to develop creative solutions about the issues that must be settled in their divorce.
Issues to Address in Your Separation Agreement
Separation agreements should cover nearly everything that a divorce court would handle except the actual termination of the marriage. These are a few examples:
Child custody. Custody is actually divided into two broad categories: legal custody (which concerns how the parents will share decision-making authority over major issues like the child’s healthcare and religious upbringing) and physical custody (which determines with whom the child will spend time). Parents will therefore need to develop a detailed parenting plan that dictates how significant decisions affecting the child will be made and with whom the child will stay on weeknights, weekends, during vacations, and during holidays and other special events.
Child support. In most cases, one parent will receive child support payments from the other parent. The amount of child support will be calculated according to statewide guidelines which take several factors into account, including the parents’ incomes and amounts of parenting time.
Alimony/spousal support. The spouses can agree to set their own alimony amounts or waive alimony altogether. Sometimes, a spouse will choose to forego spousal support in exchange for a desired piece of marital property. Or one spouse may insist on including alimony as a condition of agreeing with the other terms in the separation agreement.
Property and debt division. Marital property and debt has to be divided. These include the family home, retirement accounts, 401(k)s, stocks, vehicles, family businesses, and more. It also includes credit card debt and other liabilities.
Will the Court Approve My Separation Agreement?
Working with your family law attorney, you can develop a separation agreement that is fair and includes terms that you can abide by. Although the spouses should try to resolve all marital issues in their agreement, in some cases they are only able to resolve a few and must go to trial for the rest. Regardless, whatever you and your spouse agree to will be reduced to a written agreement and then submitted to the judge for his or her approval.
The judge will usually approve the agreement as long as it is fair and reasonable to both spouses. This requires reviewing a number of factors such as the complexity of the issues involved and the context in which negotiations between the spouses took place. Agreements that contain unenforceable or unreasonable terms will not be approved. For instance, the judge may not permit the agreement to waive child support except under unusual circumstances.
Once the judge signs the separation agreement, it becomes an enforceable court order and a binding contract. If one spouse violates the agreement, the other spouse can take them to court.
Contact Our Middlesex County Separation Agreement Attorney
Learn more about the advantages of separation agreements by reaching out to LaFountain & Wollman P.C. We can answer your questions, address any concerns you might have, and then get to work negotiating and drafting your agreement. Connect with us now.