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.
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.
The bottom line is that it is critical that you understand your rights and responsibilities clearly before signing a MSA.
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.
Once approved, it becomes a legally binding document and the terms must be followed by both parties.
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.
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.
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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.
That said, there are instances where couples may prepare the paperwork as “co-plaintiffs,” “co-petitioners,” “joint plaintiffs,” or “joint respondents.” The paperwork is identical, except for how the parties are named.
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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.
Depending on court backlogs, state laws regarding waiting periods, and the availability of judges, your divorce could be finalized in a matter of a few weeks, although it may take three months or longer in some cases.
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.
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.
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.
In cases where you have reached a settlement but not yet signed the MSA, you can simply resume negotiations again. In this case, there’s nothing to stop or reverse.
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.
If one spouse can provide evidence of fraud, this might make for a compelling reason to reopen the case. Often this is the case when one spouse is caught hiding assets or income, resulting in an inequitable division of assets.
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.
Yes. Both parties should sign the completed agreement in front of a notary.
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.
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.
When one spouse owes another money as agreed upon in an MSA (such as spousal support or child support), if they don’t pay, you can seek a Writ of Execution to levy accounts or other assets owed to you by your ex.
Consult with an attorney to explore your options and see which works best for your individual situation.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
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