What is a Marital Settlement Agreement?
When a couple decides to get divorced, many issues must be sorted out. One of the most important is the division of property and assets. This is often done through a marital settlement agreement, or MSA.
How it works
An MSA is a document that spells out exactly how spouses will divide their marital property and assets as they part ways. In addition to being a property settlement agreement, it can include information about child custody, child support, spousal support/alimony, and other issues that need to be addressed.
An MSA should include a detailed list of all the property and assets owned by the ex-spouses. It should spell out who gets what and how it will be divided. It may also contain a parenting plan, if the couple has minor children, explaining the division of parenting time, where the children will live, and how often they will spend time with each parent.
At the end of a successful settlement agreement process, you’ll have a signed document that contains all of your plans about core issues, such as the following:
- Divisions of property and debt
- Child support and spousal support payments
- Parenting plans
One of the benefits of an MSA is that it can help speed up the divorce process. It can help avoid costly and time-consuming court battles over property and assets.
Many settlement agreements develop through mediation. People hire a trained professional to help them work through any points of conflict they have about their divorce settlement. An impartial third party helps them understand each other and resolve their disagreements.
How to prepare an MSA
There are many things to consider when drafting an MSA. One of the most important is whether the couple should do it themselves or hire a divorce attorney.
If the couple decides to draft the MSA themselves, they will need to gather all of their financial information and discuss how they would like to divide their assets and liabilities. In California, for example, you must share the following financial data with your partner:
- Two years of tax returns
- Two months of pay stubs
- Mortgage statements
- Bank account statements
- Car titles
- House titles
- Credit card statements
- Retirement account statements
All of this information concerns what you own and what you owe. These documents can help you split things equitably without leaving anything out.
Some people create draft documents they send to the other person to review. Trading edits can help you collaborate without meeting to discuss each item. This can save time and make the negotiations less emotionally taxing.
Other people prefer to schedule formal meetings. They walk through each item one by one, determining who gets which pieces of the estate. At the end of these negotiation sessions, they have a document that works.
Having your MSA reviewed
Even if you draft it yourself, it's highly encouraged that you and your spouse have separate family law specialists review the document before it’s signed.
Once signed, an MSA will be reviewed by a judge before finalizing your divorce. The judge evaluates the MSA for fairness to make sure one party isn't taking advantage of the other. If they are satisfied, they'll enter the MSA into your divorce record, making it binding.
Use our online Marital Settlement Agreement tool to easily build a contract between yourself and your spouse that details your divorce agreement.
How to enforce an MSA
Settlement agreements aren’t tentative. Once you’ve discussed each item and signed the document, it’s considered legally binding. It’s difficult to change the terms of that agreement, especially once you’ve passed it to a judge for review and it’s finalized.
Your final settlement agreement is filed with the court and becomes part of your official divorce decree. In most states, those documents are signed by judges and filed in courtrooms. You must abide by the terms, or you could face legal action from your spouse.
Is an MSA required?
You’re not required to craft an independent settlement agreement to end your marriage. You could go to court instead and have the judge do it for you. But creating your own settlement outside of court can lower your cost, stress, and divorce time frame. It’s often a smart move and the preferred path.
For a settlement agreement to be successful, couples must agree on all pertinent issues. That means you can’t have lingering questions such as the following:
- Who keeps the house?
- Who keeps the car?
- Who will pay off the credit cards?
- When will I have the kids?
- How flexible are the visitation arrangements for our kids?
- How much will I get in spousal support payments?
What if we don't get along?
You’re not required to love your ex or have pleasant conversations about your future, but you must be willing to collaborate on your settlement and agree on terms. The idea is that you put aside your strong emotions in the interest of finding the best solutions in a tough situation.
A settlement agreement could be right for you if you can work with your ex in a collaborative manner. People with relatively straightforward estates and few assets may have less to argue about. Those without children could have simpler divorces, too.
People with complex situations could also try to work through their issues in mediation. Mediation is cheaper and less stressful than going to divorce court, but it takes a willingness to compromise from both parties since no one ever gets everything they want in a divorce.
Is divorce mediation right for your needs? Click here to read more.
Can an MSA be changed in the future?
Although binding when entered into your divorce record, it may be possible to change your MSA down the line. This is not a quick or easy process, but it can be done.
For example, if you and your spouse agreed in your original MSA that you would receive $400 per month in alimony, but your former spouse loses their job a year after your divorce, they could petition the court to reduce or eliminate child support payments due to their loss of income.
An MSA is a helpful tool in the divorce process. Especially when couples are amicable, creating an MSA can be a great way to keep control over the division of your assets and liabilities.
If you would like to learn more about property division – especially how to do it without the help of a pricey divorce lawyer – Hello Divorce can help. Contact us to set up a free 15-minute phone call to discuss your divorce case. We can tell you about our flat-rate marital settlement agreement tool, the MSA reviews we offer, and other services as well.
ReferencesPreparing for a Successful Settlement Agreement. (March 2018). American Bar Association.
Are Settlement Agreements Binding? U.S. Department of Commerce.