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Monday, November 25, 2019

What is the difference between a Memorandum of Understanding and a Divorce Agreement?

This is the first article in our series on Divorce Agreement drafting. For a list of the upcoming articles scroll to the bottom of this post.  If you want to jump right to our useful resources try these links:

Download a free Agreement Checklist

Download a free Memorandum of Understanding

Buy a Divorce Agreement Template

We hope you find these resources useful.  While our focus is on Massachusetts agreements, many of these tips will apply in other states as well.  Keep reading to learn more:

What is the difference between a Memorandum of Understanding and a Divorce Agreement?

To settle a divorce case in Massachusetts, the Probate and Family Court requires that the spouses file an agreement resolving all terms related to dissolving their marriage.  This is typically called a Divorce Agreement or Separation Agreement.  It is a public document that the judge must review and approve for a divorce to be finalized in Massachusetts.

To be approved, the Divorce Agreement must include provisions addressing at a minimum:
  • Alimony
  • Asset & Liabilities Division
  • Health Insurance
  • Life Insurance
  • Legal & Professional Expenses
  • Income Taxes
  • Dispute Resolution Provisions
and if there are un-emancipated children it should also address:
  • Parenting Plan
  • Child Support and Expenses
A more complete checklist for agreements can be downloaded here.

The Divorce Agreement is a legal contract outlining these terms and, like a will or trust, it is best to have a lawyer draft the agreement. A Memorandum of Understanding, on the other hand, is a much simpler document, which outlines only the terms of the agreement without all the legal contract language or formality.

Often mediators will draft a Memorandum of Understanding to confirm the terms that spouses agreed on in mediation.  The Memorandum of Understanding (or MOU for short) must then be turned into a full Divorce Agreement.  In Massachusetts, a mediator who is also a lawyer can draft the full Divorce Agreement if both parties agree.

As an example of how different the language might be in each, a MOU might have the following language on child support:
Child Support is $300 per week paid by Jamie to Chris starting on November 29, 2019.
A Divorce Agreement will be more specific so that the court is clear on the additional details that may be necessary to enforce and clarify an agreement in light of the laws around child support in Massachusetts.  For example, a Divorce Agreement with the same terms might have the following language on child support:

Jamie and Chris now irrevocably waive all rights to past child support payments from the other party.  Jamie will pay to Chris, as current child support, the sum of $300 per week, with the first such current child support payment to be made on November 29, 2019 and on each Friday thereafter. The payment will be made by direct deposit into a checking account provided by Chris.  The amount of child support is consistent with the Child Support Guidelines effective September 15, 2018, and the guidelines worksheet filed herewith.
Jamie and Chris acknowledge that child support may be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines. If either parent requests a modification of support, and they reach agreement, such modifications and agreements will be reduced to a writing in advance of implementation and will be signed by both parents and submitted to the court with a Joint Petition for Modification, at shared cost. If Jamie and Chris are unable to agree, they will comply with the Enforcement and Dispute Resolution provisions in this Agreement.
All obligations described in this Schedule continue until further Order or Judgment of the court or upon the disqualification of the children by their emancipation.  Emancipation is defined by the application of the pertinent provisions of M.G.L. Chapter 208, Section 28.


Some attorneys and mediators will also offer flat fee drafting of full Separation Agreements if you need assistance converting a Memorandum of Understanding into a Separation Agreement. Skylark Law & Mediation, PC offers these services on a flat fee basis, and our pricing is available online here.

It is important, whether preparing an MOU or the final Divorce Agreement, that you provide a complete description of your intentions.  If something is not addressed in the agreement you might be waiving your rights to it in the future, so you want to ensure to cover all the typical provisions and anything unique to your family.

In our upcoming blog series on Separation Agreements, we'll explore the various provisions that are often overlooked or incomplete including how to write agreement provisions that address all of these issues:
  • Parenting Plan Provisions - How Rigid or Flexible should You Be?
  • Introducing new Significant Others to Children (and other difficult agreements to discuss);
  • The Intersection of Technology and Parenting Plans;
  • What's in a Name? - Divorce Agreement Drafting for Real People
  • Gender Neutral Agreement Drafting - Avoiding Pronoun Problems
  • Child & Spousal Support Checklist for Agreement Drafting
  • Getting Retirement Division Right in an Agreement 
  • Dealing with Unusual Assets in a Divorce
  • Digital Images & Divorce - Love's Library Lost?
  • Frozen Embyros & Divorce - What is the Law in Massachusetts?
  • Health Insurance Options in a Massachusetts Divorce - Knowing your Options
  • Protecting the Life Insurance - Necessary Provisions to Avoid an Heir Issue
  • Equity Compensation, Is Baccanti all there is to it?
  • Is a Divorce Agreement a Contract? 



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