Boston spouses sometimes live apart for some time before taking legal action to end a marriage. Some individuals or couples request separation agreements to establish rules about child custody, support and property. Separation agreements may seem like temporary, disposable terms to get through the divorce process, but taking them lightly is not recommended.
Separation agreements are forerunners to divorce judgments. In fact, a separation agreement is often incorporated into a divorce agreement. Therefore, the choices you make during separation may last long past a divorce decree.
Wording in separation agreements must be precise. Otherwise, the option to dispute the terms of the contract may not be available following the divorce in Massachusetts. For instance, if you agree to forfeit the marital home or other property in a separation agreement, the provision will not be altered by the court – the decision "survives," becoming an unalterable, independent contract unless there is evidence of fraud.
Any provisions within a separation agreement that concern children – support, custody and visitation – must be "merged" into divorce judgments. Courts want the option to alter these terms if circumstances affecting the best interests of children change. A merged agreement is open to modification, but survival provisions may not be altered.
While child-related issues must be open to change, alimony falls into a gray area. It's up to spouses to decide whether alimony should be locked down as a surviving provision or appear as a merged term, open to future change. With few exceptions, spouses who waive alimony under survival terms may not ask for alimony at a later date.
Spouses, in the throes of divorce, sometimes make choices based upon emotions rather than rational thinking. Attorneys are careful to remind clients that words are a contract's binding elements. If you're contemplating a separation agreement or divorce, it's important to understand what these agreements mean to you now, and more importantly, after a divorce.