Settlement Agreements

In Massachusetts, the court takes the view that all joint property should be equitably or fairly divided when you decide to split.  But the word equitable may turn out to be anything but what you might expect.  The one truism about divorce is that it is generally anything but fair!

Usually judges start with the proposition that equitable distribution is a fifty-fifty split of joint property and may also include a fifty-fifty split of appreciation during marriage of any separate property.  One spouse may get more than fifty percent if the court finds a good reason for it.  The 21 factors, as provided in M.G.L. Ch. 208, Section 34, provide factors which a court determines what percentage of the property is reasonable or equitable for each party to receive. 

In order to get your fair portion of the marital estate, get ready to offer documented proof and answers relating to your marital history in these areas and make the judge’s job easier to rule in your favor:

  1. Length of Marriage
  2. Conduct of the Parties during the Marriage
  3. Age of the Parties
  4. Health of the Parties
  5. Station of the Parties
  6. Occupation of the Parties
  7. Amount of Income of the Parties
  8. Sources of Income of the Parties
  9. Vocational Skills of the Parties
  10. Employability of the Parties
  11. Estate of the Parties
  12. Liabilities of the Parties
  13. Needs of the Parties
  14. Opportunity of the Parties to Acquire Future Capital Assets
  15. Opportunities of the Parties to Acquire Future Income
  16. Contribution of the Parties in their Acquisition of their Estate
  17. Contribution of the Parties in their Preservation of their Estate
  18. Contribution of the Parties in Appreciation in Value of their Estate
  19. Contribution of the Parties as a Homemaker to the Family Unit
  20. Present and Future Needs of Dependent Children of the Marriage
  21. Opportunity of the Parties to acquire health insurance or other health coverage through an employer or organization.

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How to Negotiate a Settlement Agreement

The easiest and most inexpensive way to reach an agreement with your spouse is to sit down at the table and talk about it.  This may be easier said than done because, after all, if you were able to discus your differences and resolve them with your spouse, you might not be getting a divorce. 

From the onset, remember this:  because you were an equal partner in the marriage, you deserve your fair share of the marital assets.  By understanding the issues, knowing exactly where you stand and including the must-have clauses in your separation agreement and parenting plan, you can negotiate confidently and ask for what you deserve.       

Finally, if you follow the rules, tips and strategies below, you are apt to work closer toward an agreement without having to fight your way through the court system and, ultimately, in front of a judge.

Rule 1:  Keep the children out of it.  This is a matter for adults.  Assure the children that no matter what happens, they will still have a mother and father who love them.  Do not involve them in the dispute.

Rule 2:  Have high expectations.  Negotiators who start out expecting more usually do better than those with lower expectations. 

Rule 3:  Know your bottom line.  Never enter a negotiation without having figured out exactly what you want beforehand.  Have a bottom line in mind that you are committed to, and do not waver.  In short, approach your divorce like a business.

Rule 4:  Have a credible threat if negotiations fail.  A key element of negotiation is fear.  You must create some fear that there will be negative ramifications if negotiations fail.  In divorce negotiation, the best threat is that you will take the case all the way through trial if you do not get a good deal.  Since trial is a very expensive and risky, the fear of trial should force your spouse to negotiate honestly.

Rule 5:  Always take notes.  If you do work out an agreement and you make notes, signing those notes might be considered an agreement.  Even if it is not in the proper legal language, one’s signature sends a clear signal of their intent.

Suggestion 1:  Approach the discussion rationally, be proactive and start talking early.  Remember, this is a business deal – not a time to extract revenge.  Stick to the finances and do not get caught up in the emotional part of it.  Since both of you agreed to sit down and talk, you might be able to settle your differences now and not go through a lot of litigation and legal fees with everybody getting worn down.

Suggestion 2:  Set an agenda.  Agree ahead of time on what to cover.  Make a list of issues.  For example, finances this week and the children next week. 

Tip 1:  Listen carefully.  Many people think that if they just talk and talk, the other person will finally see that they are right and agree with them – but this just doesn’t work.  It is usually more productive to listen.  Do not presume you know what is or isn’t important to your spouse.  Asking questions is better than trying to read minds.

Tip 2:  Let your spouse make the first offer.  You can make sure you are not aiming too low by letting your spouse say what they want first.  Sometimes, a spouse really does not know what they want, or cannot make a decision.  In those cases, you will need to make the first offer, but always ascertain what the other side wants first.

Tip 3:  Beware of the nibbler.  After you have reached an agreement and shake hands, the nibbler will ask for “just one more thing.”  In the spirit of good faith, you might be inclined to make concessions to keep the deal, but ask, “If I do that, what will you do?”  That will usually be enough to send the nibbler back to the original deal.

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Must-Have Clauses For Your Separation Agreement

You can negotiate and get the best settlement in the world, but if you don’t have a properly-worded agreement, that settlement is not worth the paper it is written on.

While it is your attorney’s job to draft a sharp agreement, you must know of the essential issues to include in your agreement.

Every agreement contains certain boilerplate clauses that are standard, but don’t forget that your case is unique enough that you must cater certain clauses to your tailored needs.

The best economic clauses in separation agreements include issues relating to the following:

  • After-Discovered Property
  • Alimony/Spousal Support
  • Automobiles of each party
  • Bankruptcy
  • Bonuses (to be paid in future years, rights of former spouse)
  • Breach of Agreement (Remedies)
  • Business Valuation
  • Change in Circumstances
  • Cohabitation
  • Communication Between Parties
  • Confidentiality of Agreement
  • Cost of Living Adjustments
  • Counsel Fees
  • Credit Cards
  • Custody-related Issues
  • Debts and Liabilities
  • Dental Insurance
  • Disability
  • Disclosure of Financial Information (Acknowledgement of)
  • Dismissal of Pending Actions
  • Educational Needs
  • Effect of Temporary Orders
  • Engagement/Wedding Gifts
  • Estates
  • Expense reimbursement (past and future)
  • Family Trusts
  • Future Legal Proceedings
  • Future Royalties
  • Household furnishings
  • Income Tax Filing
  • Income Tax Returns (past and future)
  • Income Tax Deductions
  • Indemnification of Debts
  • Interpretation and Execution
  • Life Insurance
  • Marital Home-related expenses
  • Medical Insurance
  • Mortgage
  • Moving
  • Name Change
  • Notice to Others (Financial Institutions, etc.)
  • Parenting Plan Clauses
  • Penalty Fees on Late Support Payments
  • Personal Property
  • Pets
  • Prenuptial Agreement (Incorporation of Terms)
  • Property Appraisals
  • Real Estate Investments
  • Religious Divorces
  • Remarriage
  • Resumption of Maiden Name or Former Name
  • Retirement (effect of)
  • Retirement Accounts
  • Revocation of Prior Wills
  • Social Memberships
  • Stock Options
  • Vacation Homes

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Best Parenting Plan Clauses

A good parenting plan will do much more than spell out custody and visitation issues.  There are scores of potential problems that may arise in the ensuing years, and the more the agreement anticipates and deals with these issues, the less likely there will be both problems later and future court dates.

Just like a separation agreement includes a long list of must-have clauses for your separation agreement, a well-written parenting plan should cover these issues:

  • Birthday parties
  • Birthdays
  • Clothing (back-and-forth between homes)
  • Communication between parents
  • Computer access
  • Conflicts in scheduling
  • Contact with children when with the other parent
  • Cosmetic surgery (tattoos, ear piercing, etc.)
  • Custody defined:  Legal custody & Physical custody
  • Death of parent
  • Decision-making rights & responsibilities
  • Dispute resolution
  • Driving:  license, use of car, purchase, insurance costs
  • Drop-off and pick-up locations and times
  • Education Expenses
  • Education Expenses:  Defined (tuition, books, meal plan, transportation, etc.)
  • Education:  Private vs. public
  • Education:  Preschool
  • Education:  Elementary school
  • Education:  Middle school and high school
  • Education:  College
  • Education:  Conditions on obligations (Child’s maintenance of GPA, etc.) 
  • Education:  Financial aid
  • Education:  Participation of each parent and child
  • Emancipation defined (child support)
  • Entertainment:  “R” rated movies, internet, alcohol, etc.
  • Extracurricular activities
  • Foreign travel
  • Health Insurance
  • Life insurance & disability
  • Mailing address of child
  • Medical and dental
  • Military service
  • Names of children
  • Non-parent child care
  • Out-of-pocket expenses
  • Parental Behavior:  Remarks, children as messengers, etc.
  • Parental interference
  • Parenting Plan:  Holidays and vacations
  • Parenting Schedule:  School year
  • Parenting Schedule:  Summer
  • Pets
  • Prior approval of activities
  • Prior approval of expenses
  • Religion
  • Religious Holidays
  • Taxes
  • Un-reimbursed medical expenses
  • Vacations & travel
  • Visitation
  • Wedding and Religious Celebrations


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