Negotiating the terms of your divorce can be a long and complicated process. But when you can find common ground, it’s possible to create a marital settlement agreement that works well for both sides.
Here’s what you should know about how this process works.
- What is a Marital Settlement Agreement?
- Marital Settlement Agreement Checklist
- Do I Need an Attorney to Prepare my Marital Settlement Agreement?
- What Happens After your Marital Settlement Agreement is Signed?
- Marital Settlement Agreement FAQs
What is a Marital Settlement Agreement?
A marital settlement agreement (MSA) is a written and legally binding contract that divorcing spouses create to resolve the issues related to their divorce. It spells out the terms, in detail, of issues such as a division of assets, alimony, child custody and support (as part of a separate parenting plan), and many others.
An MSA may go by slightly different names depending on where you live, sometimes being referred to as a divorce settlement agreement, separation agreement, stipulated judgment, or something similar.
Depending on your situation, you and your spouse may be able to draft an MSA on your own. However, it is common to have attorneys draft the document for each spouse’s review to ensure the document is an airtight agreement. Part of what drives this is how complex your issues are, whether or not you have a lot of assets or children, and whether or not you want to save money on legal fees.
If you have any doubts at all about your possible MSA, it’s probably best to protect yourself and seek advice from legal counsel. If you do seek legal help, understand that one attorney cannot represent both parties. Each spouse will need to provide their own legal assistance.
Another benefit of hiring an attorney is that they can negotiate terms on your behalf if you are intimidated or unsure of how best to proceed. Alternatively, you and your spouse may consider engaging a mediator to help both of you reach an amicable agreement.
After you have completed and approved an MSA with your spouse, it will be incorporated into your judgment of divorce and submitted to the court for review and approval.
But enacting terms of the MSA doesn’t need to wait for the divorce to be finalized to become effective. Once it’s signed by both parties, the agreement and its terms can be put into effect.
If either spouse does not comply, you can seek relief from the court to ensure compliance.
Marital Settlement Agreement Checklist
The following is a list of many of the issues that may be included in a marital settlement agreement. Because your divorce is unique, not all of these will apply. But you should at least be aware that they should be covered in the MSA if needed.
Also, make sure you clearly understand everything in your settlement agreement and other related documents before signing. If you don’t understand something, be sure to consult an attorney.
Division of Assets
- Which assets are separate property?
- Which are jointly owned marital assets?
- Is there any marital misconduct and is a division of assets impacted by this under your state’s law.
- How are debts to be handled? Who incurred the debt and how is debt treated under your state’s laws?
- How are investment accounts divided?
- How are retirement accounts divided?
- Who is responsible for preparing the QDRO documents? How will the QDRO preparation fees be shared?
- How are various assets valued?
- Is there an allowance that should be made for a spouse to keep the family home if children are involved?
- Who lives in the primary residence? How will the out spouse be compensated if one spouse retains ownership?
- Is there a prenuptial agreement or postnuptial agreement in place?
- How are inheritances and gifts to be treated?
- Is either spouse a business owner, and if so, what has been the relationship of the other spouse to that business?
- Are there other large assets that need to be divided, such as cars, boats, motorcycles, recreational vehicles, vacation homes, jewelry, collectibles, antiques, airplanes, etc.?
- Who gets the family pets?
- Is there a need for spousal support?
- Lump-sum or periodic payments?
- Any impact based on child support payments?
- Is there any marital misconduct that might impact an alimony award?
Child Custody and Support
- Is there a formal parenting plan?
- How are holidays, summers, and vacations addressed?
- Who has legal custody?
- Who has physical custody and in what amount?
- Education expenses, including college tuition
- Extracurricular expenses
- How much overall child support will be paid?
- Will child support include childcare expenses?
- Is life insurance in place to protect children?
- How will college be paid for?
- Will grandparents or other relatives seek a share of custody (some states recognize grandparents rights).
- What are the rules and limitations for traveling far distances, both domestically and internationally?
- Is there any child abuse taking place?
- Does either parent have a substance abuse problem?
- Does either parent have other children that are impacted by custody and visitation?
- How will coverage for children be addressed?
- What about coverage for the spouse who may have been previously covered under a spouse’s policy?
- Is a spouse eligible for COBRA benefits?
- Do any family members have special medical needs?
- Are there any stepchildren, and if so, how do they factor in?
- What date were you married and what is your official date of separation?
- Is either spouse an active member of the military (special provisions apply to some parts of a divorce)?
- Does a spouse have plans for a name change?
- How will attorney fees for both sides be paid?
- Are there issues in the MSA that should be kept confidential?
- Are there wills or family trusts in place? How will they be revised?
- Are there any outstanding loans against insurance policies?
- Is the wife currently pregnant, and is the husband the father of the child?
- If there are any outstanding issues that can’t be resolved, does either party have any objections to a bifurcated divorce?
- Who will claim the children as dependents on any tax returns?
- How will Federal and State taxes be filed this year?
- Will each spouse provide a completed financial affidavit to the MSA for reference purposes?
Do I Need an Attorney to Prepare my Marital Settlement Agreement?
If you have any doubts or insecurities about drafting a marital settlement agreement on your own, you should definitely seek outside help to prepare a thorough and legally binding MSA.
It’s difficult to be an expert on all the parts of an MSA, so don’t feel intimidated or awkward if you need to seek help. The worst thing you can do is put yourself in a long-term complicated post-divorce situation because you didn’t cover all your bases.
You also can’t assume that a judge will catch any shortcomings on your behalf. It’s really not their job, other than to generally determine that all aspects have been covered and that the agreement is prepared properly.
Even though a single lawyer may draft an MSA, and will work with both spouses during the process, technically they can only represent one spouse and not the other. In most cases, the lawyer will represent the “plaintiff” or “petitioner,” who is the spouse that asked for the divorce.
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What Happens After your Marital Settlement Agreement is Signed?
Your MSA becomes effective as soon as both spouses sign it. There’s no need to wait for your divorce to be finalized to start adhering to the terms of the agreement.
Since you’ve done the hard work of resolving your differences, unless there is a glaring problem or inequity in the MSA, gaining approval by a judge should be a smooth process.
To get a better sense of many of the things you should start thinking about, including and in addition to the terms of your MSA, we’ve developed a post-divorce checklist that outlines several steps you should take.
Marital Settlement Agreement FAQs
What’s the difference between a marital settlement agreement and a divorce decree?
They sound similar and they are sometimes confused with each other, but a marital settlement agreement and a divorce decree are different.
As we’ve explained, a marital settlement agreement lays out all the terms and responsibilities associated with your divorce, as negotiated between you and your spouse. You craft the MSA and finalize it before submitting it to the court for approval.
The court will review the MSA as part of your full document submission requesting a divorce. You will probably need to file a summons and complaint, a parenting plan (if applicable) and other related documents as indicated by the terms of your divorce. Often you may need to submit a financial affidavit that lists assets and debts as well.
After the court reviews your paperwork and approves it, a final divorce decree will be entered. This legally ends your marriage and you are officially divorced. In some cases, the MSA is merged with the final decree, and at other times it is attached as a separate document.
Can a marital settlement agreement be changed?
After your MSA is finalized, circumstances in your divorce may change. When this happens, it is possible to amend the settlement agreement and petition the court to change the MSA. Your attorney will need to file a motion immediately, and present an argument to the court about why the agreement should be rescinded.
Part of this is going to depend on how significant the new information is and how compelling you can make your case to the court.
Even if both sides agree that a change is warranted, the judge has the final say and may not modify the agreement if they don’t think it is warranted.
What about changes after the final divorce decree is entered?
In cases where the divorce decree is final, it may also be possible to modify the decree if the evidence is compelling enough.
When one party objects to the final decree, you may have the right to appeal the decision. Rules for appeals are strict and generally work on a short time frame. So you must act as soon as possible if you decide you disagree with the final result.
However, a person who is unhappy with the divorce decree cannot appeal a judge’s decision if he or she signed off on the paperwork. Instead, that person’s only option would be to convince the court to reopen the case and rescind the agreement.
This is not an easy process, which is why the best advice is to take all the time that’s necessary to thoroughly work through the ramifications of the agreement or the decree before you sign any paperwork.
Does an MSA need to be notarized?
Yes. Both parties should sign the completed agreement in front of a notary.
Is a marital settlement agreement binding?
After an MSA has been approved as part of a divorce decree it is a binding legal agreement. Unless an ex-spouse seeks modification due to fraud, duress, mistaken negotiations or other similar reasons, both spouses are compelled to follow the terms of the agreement.
What are my options if an ex-spouse violates terms of the MSA?
You have several legal avenues you can pursue.
You can file a contempt of court action against your spouse. This states that your ex has violated a valid court order, despite the fact that they knew about the order and violated it anyway. If a judge agrees, they can force the ex to pay a fine or spend a little time in jail.
You can also file a motion seeking sanctions for violating the terms of the agreement. This compels the other party to cooperate. This might be the case when you’ve decided how to divide property, but your ex either subsequently refuses or slow walks through the process. You can request that this action be completed by a specific date to remedy the situation.
In other cases, when a party refuses to sign documents related to an MSA, you can ask the court to appoint an “elisor” who will sign documents on behalf of that party. This might be a court clerk who signs the document in question, making it legal and enforceable.
Consult with an attorney to explore your options and see which works best for your individual situation.
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