Among couples who are about to divorce, there is often confusion as to what a Separation Agreement in Massachusetts actually is. So, . . . what is it?

A Separation Agreement is a written document that describes the terms of the divorce. Once signed, it becomes the legal document that will be used for a no-fault divorce in Massachusetts.

Some of the topics that need to be addressed, in detail, in a Separation Agreement in Massachusetts include:

Separation Agreements need to be signed, notarized, and then filed with the proper Probate and Family Court Department in conjunction with other divorce documents. The judge will then review the Separation Agreement and may take various actions. The judge may approve the Separation Agreement if she or he finds it to be fair and reasonable. Or, the judge may ask that parts of the Separation Agreement be clarified or changed. Finally, the judge may reject the agreement if she or he is not satisfied with it and deems it unfair or unreasonable.

Once the judge is satisfied with and approves the Separation Agreement, it will become enforceable by the court.

People draft their own Separation Agreements all the time. Some are completed better than others. However, many of these agreements are rejected by a judge for a number of reasons. Those couples who want to ensure they are drafted correctly the first time should consider consulting an expert.

Mediators draft or have Separation Agreements drafted for couples seeking divorce. This can be very cost effective because one mediator can draft the document for both parties. Parties can then choose to take the Separation Agreement to court or to have separate attorneys review it first. It is not a requirement for Separation Agreements to be reviewed by counsel. Some divorcing spouses choose to have their document reviewed and others do not, cost saving being the main factor. A reputable divorce mediator in Massachusetts will encourage clients to have the Separation Agreement reviewed by counsel, but the decision to do so ultimately rests with the parties.

Attorneys also draft Separation Agreements for their clients. "For their clients" is a very important distinction. An attorney cannot represent two spouses. He or she can only represent one spouse. So, if your spouses' attorney drafts a Separation Agreement, realize that the lawyer is representing your spouse and not representing you. Therefore it is recommended that you review it carefully and/or find a family law attorney to review it for you.

The Massachusetts Bar Association Opinion 53, clearly states, "An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation."

Separation Agreements in Massachusetts become very important documents with significant legal standing. Working with the right professional during divorce is vital to ensure that you reach informed decisions that will work for you and your spouse now and in the future.