A divorce is not even contemplated when two people get married, but it happens. When a married couple decides to split up, there are many things that need to be divided. It’s not uncommon to have a lot of arguments about what is fair in property division, custody, or support, etc. If you’re lucky and able to settle with your spouse outside of court, you’ll have something called a Marital Settlement Agreement (MSA); it’s also called a Divorce Settlement Agreement or Marital Termination Agreement. On this webpage, we discuss the following topics to answer common questions about this subject:
- What is a Marital Settlement Agreement?
- What are the Benefits of Having a Marital Settlement Agreement?
- Mediation for a Divorce Settlement Agreement
- Division of Property
- Who Prepares the Divorce Settlement Agreement?
- What Happens if You Don’t Follow the Marital Settlement Agreement?
- Are There Any Limitations to a Marital Settlement Agreement?
- Do You Need to Hire a Divorce Attorney?
What is a Marital Settlement Agreement?
In most cases, spouses don’t want to go to trial court to figure out their divorce terms. When this is the case, the couple enters into a Marital or Divorce Settlement Agreement. A Marital Settlement Agreement lays out the terms of the divorce, legal separation or annulment. Once the agreement is written and agreed to by both parties, the terms of settlement are filed as part of the Judgment of Dissolution of Marriage (aka divorce), legal separation, or annulment. Basically, the couple has the opportunity to decide their own terms for divorce instead of having a judge decide for them through trial.
The most common areas that are covered in an MSA are:
- Child custody
- Child Support
- Child visitation
- Property division
- Health insurance
- Spousal support
- Division of debts
Other content that can go into an MSA:
- Attorney and other expert’s fees
- Tax provisions
- What happens if there is reconciliation
- Waiver of rights to deceased spouse’s estates
- Modification terms
- Effective date
Although the MSA may cover issues of child custody and/or child visitation, child support isn’t something that can be agreed on in a Divorce Settlement Agreement. Child support is regulated by the state and is the right of the child, not an option for divorcing parents. The issues that deal with children in the divorce are resolved in a parenting plan that is usually submitted with the MSA.
What are the Benefits of Having a Marital Settlement Agreement?
The benefits of having a Marital Settlement Agreement written as part of your divorce are:
- Fair judgment that is agreed upon by the parties involved
- Court involvement is lessened or eliminated all together
- It is written, therefore more likely to be followed by both former spouses
- Saves a great deal of time and resources by not going through trials
- Lower attorney fees
Not only will the two individuals benefit from an MSA through the above mentioned, research shows that both former spouses will be more likely to follow the terms of the agreement because they came up with it themselves.
In the case that the spouse that is being served the petition for divorce does not respond and there is an MSA, it would be a default divorce case with written agreement. Since there was no contesting and the terms have already been agreed to in the MSA, those terms will be enforced. Of course, the MSA needs to have been approved by court already.
Mediation for a Divorce Settlement Agreement
A divorce mediation is usually how the couple and their respective attorneys come up with the terms of the MSA. In this time, the couple discusses and negotiates terms for any issues that they can think of, regarding the divorce. If the parties can resolve every issue, the final written agreement will be signed and then brought to court for the Final Judgment of Divorce. If the divorcing couple cannot resolve all of their divorce issues, then further litigation is needed and they will have to go to contested divorce hearings, in which a judge will make the decisions for them.
Division of Property
For a fair division of property, the court (who has the final approval) will consider these following factors:
- Length of marriage
- Needs of the parties involved
- Each individual’s contribution to the property
- Each person’s ability to earn a living
- The children’s needs
Who Prepares the Divorce Settlement Agreement?
The MSA document is very important in a divorce and should be drafted by an experienced family lawyer. Even though the couple is coming up with the terms to the divorce settlement agreement, it needs to be aligned with the rules, such as California’s community property law. When the divorce attorney is drafting the MSA, he/she needs to make sure that it follows the strict requirements of community property otherwise the agreement won’t be enforceable.
Since both parties have his/her own lawyer, only one lawyer will be the one to draft the MSA. The other lawyer will review, edit, add, change, and eventually approve the drafted document. It is up to the two parties to decide which lawyer they want to draft the MSA. Keep in mind that a longer document does not mean better. Keep your focus on the content and quality of the terms, not the number of pages of the MSA.
What Happens if You Don’t Follow the Marital Settlement Agreement?
As soon as the divorce settlement agreement is signed by both parties and filed with the court, this document becomes enforceable. That means both parties need to adhere to the terms that were outlined in this agreement. It will govern whatever issues were covered, such as: spousal support, child custody/support/visitation, property division, debt division, etc. Of course, at any time, the terms can be challenged by either party. The court is also allowed to reject the entire settlement if it doesn’t comply with California family law requirements.
The provisions in the MSA are binding and enforceable when approved by California family court. If you don’t follow the terms of child support or spousal support, you may be held in contempt. Other issues of the MSA may be brought to court with a lawsuit if one or both parties don’t comply; breaking any of these terms can be considered a breach of contract.
If you have any concerns or think any issues have been left out, make sure to talk to your divorce attorney. Once you sign the MSA, it is final.
Are There Any Limitations to a Marital Settlement Agreement?
There are several limitations to a Marital Settlement Agreement. Not all divorces are the same, so the list below is not exhaustive of all the things that may not be enforced in an MSA. It’s important to talk to your lawyer about any questions or concerns you may have about the terms of the divorce. Here are several common issues that is not enforceable through an MSA, determined by the divorcing couple.
- Child support – The court has the final say in awarding child support
- Child custody – The court has custody jurisdiction of minor children in a divorce
- Religious upbringing of children – a court likely won’t be enforcing any terms of religious upbringing of the minor-aged children [In re Marriage of Weiss]
- Damages – Since California is a no-fault divorce state, the paying of “damages” from one spouse to another is not enforced. (see California No-Fault Divorce)
Do You Need to Hire an Attorney?
It is highly recommended that you hire an experienced attorney to help you in mediation and drafting a divorce settlement agreement. As stated above, the terms of the agreement must comply with California family law in order to be enforced. With an experienced divorce attorney, you will feel more at ease that you are getting a fair deal in the divorce. For consultation with our excellent lawyer, give us a call today.