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Marital Settlement Agreements

Posted By Judy Williams || 22-Aug-2014

What is a Marital Settlement Agreement?

Many people who are about to begin divorce – (in some states called marital dissolution) – proceedings, are unaware that estranged spouses can agree to most of the terms of their divorce – without a bruising and protracted court battle.

What is a Marital Settlement Agreement (MSA)?

A “marital settlement agreement” (MSA) is a written contract negotiated and signed by divorcing spouses to resolve issues relating to their divorce/dissolution and to spell out each party’s rights and duties.

This legally binding document is sometimes referred to by other names including: “divorce settlement agreement,” “separation agreement,” “property settlement agreement,” or “marital separation agreement.” Generally, if a family court judge determines that the agreement is fair and reasonable, and that there was no coercion or undue influence, the terms will be included as part of the eventual court order making the divorce/dissolution final. Note that “fair” is not necessarily the same as “equal” – especially in non-community property states.

When the agreement is made part of the final divorce/dissolution order, it then has the same force and effect as if the judge had tried the case and decided the terms. Successfully negotiating a marital settlement agreement has many benefits for the divorcing couple. The cost will be far less than if the spouses fight over each and every term in lengthy litigation and, since they have agreed to the terms, there is a better chance that both will adhere to the MSA’s provisions.

Generally, the spouses are permitted to negotiate and agree to the contract themselves. If there are minor children, though, or if the couple have more than minimal assets, the prudent course of action is for each party to have the advice and assistance of an experienced family lawyer.

What Should Be Included in a Marital Settlement Agreement?

Most settlement agreements cover the major categories of issues, including: child support, custody, and visitation; spousal support (alimony); division of property; and division of debts. These issues are usually more complicated, though, than most divorcing couples expect at the outset.

Minor Children

All aspects of the care and control of the children, including legal custody and visitation should be included in detail. The issue of child support, however, is generally regulated by the state because that support is the right of the child.

Spousal Support (Alimony)

Depending on the laws of a particular state, the availability, amount, and duration of spousal support will vary.

Ownership, Control, and Division of Assets

All details about division of real and personal property of the couple should be addressed. “Real property” means real estate. “Personal property” includes all money, bank accounts, stocks and bonds, retirement accounts, life insurance policies, household goods and furnishings, valuables, personal clothing and belongings, automobiles, and any other assets that are not real estate. It also includes any business interests of either party.

Responsibility For and Payment of Debts

This includes all current, installment, and other long-term debts and obligations as well as responsibility for taxes. Some terms of the agreement are carried out immediately, such as: “The 2010 Toyota goes to the Husband.” Others may describe extended obligations, such as, “Wife shall assume all responsibility for the parties’ debt to Nordstrom’s.”

Some other provisions of the agreement may be ongoing, but subject to modification, such as, “Husband shall pay to Wife on the first day of each and every month hereafter the sum of One Thousand Dollars as spousal support until the death of either, remarriage by Wife or further order of court.”

Each party should understand each and every term of the agreement. It is important to ask questions, and make sure that the written document reflects the actual, negotiated terms. Every provision of your Marital Settlement Agreement is intended to be binding and enforceable.

To learn more about MSA’s, mediated divorce and California family law issues please contact The Center for Mediated Divorce in Irvine, California.

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