Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts effective Immediately
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Massachusetts, but does
include basic and other provisions.
General Summary: Separation agreements, when free from
fraud and coercion and when fair and reasonable, are valid. This
is subject to the approval of the the court. If a judge rules, either
at the time of the entry of a judgment nisi of divorce or at any subsequent
time, that the agreement was not the product of fraud or coercion, that
it was fair and reasonable at the time of entry of the judgment nisi, and
that the parties clearly agreed on the finality of the agreement on the
subject of interspousal support, the agreement concerning interspousal
support should be specifically enforced, absent countervailing equities.
The power of a Probate Court to modify its support orders may not
be restricted by an agreement between a husband and a wife which purports
to fix for all time the amount of the husband's support obligation.
This is especially true regarding support provisions under Section 1A of
Chapter 208.
Statutes:
PART II.
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS.
TITLE III.
DOMESTIC RELATIONS.
CHAPTER 208.
DIVORCE.
Irretrievable breakdown of marriage; commencement of action;
complaint accompanied by statement and dissolution agreement; procedure:
An action for divorce on the ground of an irretrievable breakdown
of the marriage may be commenced with the filing of: (a) a petition signed
by both joint petitioners or their attorneys; (b) a sworn affidavit that
is either jointly or separately executed by the petitioners that an irretrievable
breakdown of the marriage exists; and (c) a notarized separation agreement
executed by the parties except as hereinafter set forth and no summons
or answer shall be required. After a hearing on a separation agreement
which has been presented to the court, the court shall, within thirty days
of said hearing, make a finding as to whether or not an irretrievable breakdown
of the marriage exists and whether or not the agreement has made proper
provisions for custody, for support and maintenance, for alimony and for
the disposition of marital property, where applicable.
In making its finding, the court shall apply the provisions of section
thirty-four, except that the court shall make no inquiry into, nor consider
any evidence of the individual marital fault of the parties. In the event
the notarized separation agreement has not been filed at the time of the
commencement of the action, it shall in any event be filed with the court
within ninety days following the commencement of said action.
If the finding is in the affirmative, the court shall approve the
agreement and enter a judgment of divorce nisi. The agreement either shall
be incorporated and merged into said judgment or by agreement of the parties,
it shall be incorporated and not merged, but shall survive and remain as
an independent contract. In the event that the court does not approve the
agreement as executed, or modified by agreement of the parties, said agreement
shall become null and void and of no further effect between the parties;
and the action shall be treated as dismissed, but without prejudice. Following
approval of an agreement by the court but prior to the entry of judgment
nisi, said agreement may be modified in accordance with the foregoing provisions
at any time by agreement of the parties and with the approval of the court,
or by the court upon the petition of one of the parties after a showing
of a substantial change of circumstances; and the agreement, as modified,
shall continue as the order of the court.
Thirty days from the time that the court has given its initial approval
to a dissolution agreement of the parties which makes proper provisions
for custody, support and maintenance, alimony, and for the disposition
of marital property, where applicable, notwithstanding subsequent modification
of said agreement, a judgment of divorce nisi shall be entered without
further action by the parties.
Nothing in the foregoing shall prevent the court, at any time prior
to the approval of the agreement by the court, from making temporary orders
for custody, support and maintenance, or such other temporary orders as
it deems appropriate, including referral of the parties and the children,
if any, for marriage or family counseling.
Prior to the entry of judgment under this section, the petition
may be withdrawn by mutual agreement of the parties. Section 1A.
Case Law:
Separation agreements, when free from fraud and coercion and when
fair and reasonable, are valid. Reeves v. Reeves, 318 Mass.
381, 384 (1945). If a judge rules, either at the time of the entry of a
judgment nisi of divorce or at any subsequent time, that the agreement
was not the product of fraud or coercion, that it was fair and reasonable
at the time of entry of the judgment nisi, and that the parties clearly
agreed on the finality of the agreement on the subject of interspousal
support, the agreement concerning interspousal support should be specifically
enforced, absent countervailing equities." Knox v. Remick, 371 Mass.
433, (1976).
Decisions have held consistently that the power of a Probate Court
to modify its support orders may not be restricted by an agreement between
a husband and a wife which
purports to fix for all time the amount of the husband's support
obligation. Ryan v. Ryan, 371 Mass. 430, 432 (1976).
The Probate Court has jurisdiction, in appropriate circumstances, to modify
the support provisions of judgments of divorce entered under G.L.c. 208,
§ 1A. Stansel v. Stansel, 385 Mass. 510 (1982) 432 N.E.2d
691. In enacting G.L.c. 208, § 1A, the Legislature did not intend
to use the term "merged" in its technical sense. This is clearly
demonstrated by the phrase which follows that term in the statute. If a
separation agreement approved by the court and incorporated into an order
for judgment were truly to be merged into that order, the separation agreement
could not, "by agreement of the parties . . . also remain as an independent
contract." Stansel v. Stansel, 385 Mass. 510 (1982)
432 N.E.2d 691.
The party seeking a modification of a judgment of divorce normally
must demonstrate "a material change of circumstances since the entry of
the earlier judgment." Schuler v. Schuler, 382 Mass. 366, 368 (1981).
Where, however, the parties have entered into a separation agreement that
was fair and reasonable when the judgment of divorce entered, was not the
product of fraud or coercion, and survives the judgment of divorce, something
more than a "material change of circumstances" must be shown before a judge
of the Probate Court is justified in refusing specific enforcement of that
agreement.
This court has noted two possible grounds on which a judge reasonably
might rely in refusing specific performance of a properly pleaded separation
agreement: that the spouse seeking the modification is or will become a
public charge, or that the party raising the separation agreement as a
bar has not complied with the provisions of that agreement. Osborne
v. Osborne, 384 Mass. 591, 599 (1981). The two grounds above are perhaps
not the only grounds on which a probate judge may base a refusal to specifically
enforce a separation agreement in a modification proceeding. Only in extreme
circumstances should a litigant who has properly raised a separation agreement
as a bar to Probate Court modification proceedings be forced to bring a
separate suit in another forum in order to vindicate his rights under that
agreement.
The existence of an independent, enforceable agreement does not
deprive the Probate
Court of jurisdiction to modify its own judgment. The requirement
that Probate Court give full effect to intention of parties as expressed
in separation agreement does
not limit court's power to modify subsequent divorce decrees. Ryan
v. Ryan, 371 Mass. 430, 432 (1976). A surviving agreement
may prompt a judge "in his discretion" not to modify an order, Knox
v. Remick, 371 Mass. 433, 435 (1976); it is not a jurisdictional bar
to the action.
