Separation Agreements 101: Don't Overlook the Boilerplate

In Massachusetts, many attorneys and mediators use a similar template for their separation agreements, which is based on a version contained in the TurboLaw software. This template begins with the body of the separation agreement — the so-called “boilerplate” — with addenda or appendixes attached for the various areas of agreement: custody; support; real estate; personal property; retirement accounts; etc. Since this is the form of separation agreement you are most likely to see, I will use it as the framework for this article.

While many attorneys refer to the first part of a separation agreement as the “boilerplate,” that term might give the mistaken impression that it is identical in all agreements or can be glossed over by the reader. In fact, the boilerplate can include some of the most important provisions that affect the spouses’ rights far into the future. Here is an overview of some of the different subsections the boilerplate might contain.

1. Statement of Facts

This is where basic uncontested facts about the divorce are set out: when and where the spouses were married; any children of the marriage; where they last lived together; the date of any complaint for divorce that might have been filed; and the purpose of the agreement. This last part is important, because it typically indicates that the agreement is meant to settle all issues that might be addressed in a divorce. Thus, it closes the door for any future litigation over unsettled issues.

2. Understanding and Disclosure

There is a lot of information packed into this section, much of it in language that might seem difficult to decipher. It all relates to few simple propositions: (1) each of the spouses is sufficiently informed of the facts and their legal rights; (2) each of the spouses considers the separation agreement fair and reasonable, and is signing it willingly; and (3) each provision of the separation agreement is fully enforceable, regardless of any prior oral or written agreements. In short, it is a valid and enforceable contract. There is a bit more to it, but that is the basic gist.

3. Separate Status

Here, the spouses declare their intent to live completely separate and apart. Neither spouse has incurred any debt for which the other might be liable, and neither spouse will do so going forward. One cautionary note: this section often includes language to the effect that "the Parties may continue to live … free from the authority of, or interference by, the other.” Some judges do not like this language because it reads like a restraining order, and will insist that it be removed before they approve the separation agreement (which is required even if you negotiate your separation agreement completely out of court). Presumably, the rationale is that restraining orders should be handled as such, with all the required formalities and notice to law enforcement. The upshot is that if you are in danger and need a restraining order, you should get one. Otherwise, you are probably better off leaving out this language and avoiding having to remove it the day you bring the separation agreement into court.

4. Waivers of Estate Claim

When you are married, you have certain rights with respect to your spouse’s estate, meaning all the property in their name. This can include rights that contradict the provisions in the spouse’s will. A separation agreement typically includes a waiver of those rights, and an acknowledgement that either spouse can dispose of their property as they see fit.

5. Mutual Release

Consistent with the general theme of achieving a full separation, this provision “clears the air” with respect to any legal claims the spouses might have against each other. This is a very broad provision that includes basically any kind of lawsuit you might bring, except for the divorce itself and related enforcement issues. If something happens after the spouses sign the separation agreement, that is a different story — but this provision effectively settles any possible claim relating to events prior to the separation agreement.

6. Acceptance — Full Satisfaction

This provision adds teeth to the “purpose of the agreement” language under the Statement of Facts. It makes clear that the separation agreement resolves any claims arising from the marital relationship, including rights that either spouse might have under the relevant divorce statutes. In other words, both spouses’ rights are “fully satisfied” by the separation agreement, and neither of them can claim that a marital right was left unresolved.

7. Addenda

This provision makes reference to the addenda dealing with specific issues, and helps ensure that the addenda will be considered part of the signed agreement. (At the time of signing, this is further confirmed by each spouse’s initials on each page of the addenda.)

8. Merger or Survival of Agreement

Here, buried within the “boilerplate,” is one of the most important provisions of the separation agreement! Anybody signing a separation agreement MUST understand what the terms “merger” and “survival” mean! These are terms that determine whether the agreement can be modified by a judge in the future. After the judge approves your separation agreement, he or she enters a judgment of divorce. If the separation agreement “merges” with the judgment, then the judge has full authority to modify the provisions in the future. If the separation agreement “survives” as an independent contract, then a judge can only modify child-related provisions such as custody and support. Child-related provisions ALWAYS merge.

Except for child-related provisions, it is important to know that you can pick and choose which provisions “merge” and which provisions “survive." For example, you might choose to “survive” the alimony provisions (often done when both spouses waive any right to alimony for all eternity) but “merge” provisions relating to how the marital home will be sold (in case conditions change and the original plan doesn’t work out). This is one of the areas where separating spouses have a lot of freedom and power to influence their future relationship — a merged provision leaves open the possibility of future litigation, but could make sense for a variety of reasons. Either way, the importance of this language should not be overlooked.

9. Execution of Documents

This provision requires the parties to promptly sign any documents necessary to comply with the other provisions of the separation agreement. I have had clients balk at this provision, because to the untrained eye, it might seem to give the other spouse authority to request your private financial documents at any time. Not so. Some divorcing spouses do agree to exchange limited financial information going forward (for example, tax returns for the purpose of calculating alimony or child support), but otherwise, you retain your right to financial privacy post-divorce. This provision simply clarifies that compliance with the separation agreement might require signing some documents, such as deeds or mortgages, and each spouse agrees to do so promptly. If a document is not required for compliance with the separation agreement, this provision has no bearing on it.

10. Strict Performance

From time to time, divorced spouses might give each other leeway with regard to compliance with the separation agreement. For example, if an alimony payor has trouble making the payment one month, the recipient might say, “That’s okay. Get it to me next month.” That kind of leeway might be seen as changing the agreement by “waiving” one or more of its provisions. The “strict performance” provision makes clear that just because somebody makes an exception or otherwise grants leeway, that does not in any way excuse your compliance with the separation agreement. Even if such leeway is granted for a long time, either spouse can insist on returning to the strict letter of the separation agreement at any time.

11. Validity

This one can be summed up fairly simply: if one part of the separation agreement is found to be invalid for any reason, that does not invalidate the entire separation agreement. The rest of the separation agreement remains valid and enforceable. We won't throw out the baby with the bathwater, as it were.

12. Governing Law

People move. This provision ensures that wherever the spouses end up, the separation agreement will be interpreted based on Massachusetts law. This makes a lot of sense, because it was drafted with Massachusetts law in mind, and might not have the same meaning in another state. You want the separation agreement to continue to reflect your intent at the time you signed it, regardless of what a different state’s law might have to say about it.

13. Modification

This one ties in closely with the “strict performance” provision. Neither spouse can modify the separation agreement, even if they agree to it orally. If you really want to change the terms of the separation agreement permanently, you must demonstrate that intent by signing an amending document that that effect.

14. Miscellaneous

The boilerplate in separation agreements often includes various miscellaneous provisions tacked on at the end. One that we often see is a “drafter” provision ensuring that ambiguities in the language of the separation agreement will not be interpreted with a presumption in favor of either spouse. Other provisions might also be included, so you should always pay close attention to this provision. Do not assume that the term “miscellaneous” means the provisions in this section are any less important!

How will you resolve potential disputes over the separation agreement?

I rarely see dispute resolution clauses included in separation agreements, but I think EVERY separation agreement should include one! Typically, I include language that requires the spouses to bring any disputes to mediation or Collaborative Law before either of them can file a complaint in court. The goal here is to make every effort to preserve long-term communication between the spouses and avoid the contentious (and expensive!) implications of family law litigation. Hopefully, as time goes on, we will see these types of provisions in more and more separation agreements and other types of family law-related agreements.

Every separation agreement is different!

As I noted at the beginning, this article is just an overview of some of the different subsections the boilerplate might contain. Every separation agreement is different, and it is incumbent on you — with the advice of an attorney, if necessary — to read your separation agreement carefully and make sure you understand all of its provisions before signing. Hopefully, this article will have helped you in that process.