Divorce Agreements in Massachusetts

March 1, 2007
Written by Staff at The Centre for Mediation & Dispute Resolution

Separation Agreements: A Delicate Document

In Massachusetts, a divorce agreement is called a separation agreement. Yet to most of the world, even the world in Massachusetts, separation means just what it implies, to live apart, not to dissolve the marriage. The question then arises: How do we, a couple who is planning to separate or has recently separated, decide how to handle our lives when we are living apart? To be more precise, what do we do about money? Who pays what to whom? What about our credit cards? Our bank accounts? Our assets? And then too, what about the children? What do we tell them? How do we each continue to play a role in their lives? And so the questions pile up and the answers are not easily determined.

At the Centre for Mediation and Dispute Resolution, we believe that a separation agreement, or a living apart agreement, is a document that needs to be handled with delicacy. The reason, when you give it some thought, is obvious. People who agree to separate often do so because they are not quite sure if they want to divorce. The big “D” looms overhead but the couple is not ready to announce that the marriage is over.

For various reasons, couples decide to separate on a trial basis. Some have been, or are still in, marital therapy. There the decision is made to try, on a trial basis, to live apart, to give each some breathing room, often while the therapy continues. Others come to the decision to live apart because they believe, or hope, that “ absence will make he heart grow fonder”. And for some couples, the separation is a compromise before divorce. One partner has asked for, or expressed the desire for a divorce. The other partner believes that the marriage should not end. For these couples, the separation is a trial run, a last tried hope that the marriage can be saved. Apart from the help of therapists in many of these situations, mediation often provides an optimal forum for reaching temporary agreements that will manage the family’s affairs during the separation. Mediation does not deal with the unresolved issues of the marriage, that is for the therapists to handle; mediation does deal with the nitty gritty decision-making with respect to finances and often interactions with children.

It is important, very important, that the mediator walks very carefully when handling trial separations. The mediator should help the couple to reach agreements that enable each one to live apart without undue concerns about money or family.

Let’s consider the kind of agenda that is the focus of trial separation mediations:

• Custodial Schedule
  Where will the children reside? When will they be with each parent? Where? Other issues that have to do with communication between children and parents and access to information from schools and the like often are touched on in the trial separation period, although a full blown parenting plan is usually reserved for divorce.
• Monetary Exchanges
  How much is needed for each party’s monthly budget in order to maintain as much as is possible the status quo. This area has a lot to do with where each party will live during the separation. Naturally one of the most difficult and emotional decisions is where to live – even temporarily. Some couples agree to a temporary support arrangement; others continue to finance both households from joint monies.
• Property
  Here the question is whether all holdings need to be listed and in effect frozen. Some couples separate out some assets, such as a bank account, and agree to divide the funds in the account, while agreeing to leave untouched the rest of their holdings Further, credit card usage needs to be defined and agreed upon.

• Miscellaneous Issues
  Couples often explore other issues that are of particular concern to them. They might, for example, decide to maintain:
  • Health insurance coverage
  • Life insurance policies
  • Beneficiaries on all holdings
  • W4 exemptions

Trial separation agreements are not intended to cover all the issues and areas of a divorce agreement. They are not intended to set a precedent for future settlement. They are intended to maintain the status quo as much as possible and to alleviate fears of what either party will or will not do. In short, they are intended to provide a measure of calm and sanity in order that the couple may reflect on issues relating to their family and relationship. The mediated agreement should not create impediments to reconciliation; to the contrary, by its declaration of what principles will govern the couple’s interactions and behavior, it should provide an environment in which reconciliation, if viable, will be facilitated.

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