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
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.
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.