Marital Settlement Agreements

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The Marital Settlement Agreement (MSA) — also known as a Separation Agree­ment, Marital Separation Agreement, or Marital Dissolution Agreement — sets out the terms of your divorce or legal separation. It details, in language acceptable to the court, the division of property and debts, the physical and legal custody arrangements for any children, provisions for health and life insurance of those children, and any payments of child and spousal support (also known as alimony or maintenance). The MSA may also address concerns such as children's relig­ious education, the exposure of children to new partners, and care of a family pet.

Divorcing or separating couples don’t have to create an MSA to complete their divorce or separation. They can instead pursue divorce litigation in which either they or their attorneys plead their cases in front of a judge. The judge will then decide the terms of settlement. Of these two approaches — litigation versus settlement through an MSA — judges prefer the latter. The MSA relieves the court of a great deal of work. And judges generally believe that the divorcing or separating couple, not the court, is foremost responsible for the terms of their divorce or separation.

Crossing the Finish Line: Creating a Marital Settlement Agreement

It’s a simple three-step process:

1.  The first step is to reach terms of settlement. Your mediator will guide you through all the issues of the divorce. You may consult specialists (accountants, appraisers, independent attorneys, etc.) at any time for advice and expertise.

2.  The mediator drafts a Memorandum of Understanding (MoU) in clear language. The parties review the MoU to be sure the terms are agreeable to each of them. The MoU also provides instructions to the attorney who prepares the final court document, the Marital Settlement Agreement (MSA).

3.  In most cases, an attorney prepares the MSA according to the terms and instructions in the MoU. You may use any attorney on whom you both agree to prepare your MSA (including your mediator if your mediator is an attorney-mediator). In simple cases, parties may be able to prepare their own MSA.

Once signed, the parties’ settlement agreement is filed with the court and, on approval of a judge, incorporated into the final divorce decree or orders of the court.

Making Changes: Durability of the Settlement Agreement

Parties who pursue divorce litigation usually expend a lot of energy attacking their spouse and defending against counter-attacks. They consequently have little opportunity to develop a durable settlement that meets the needs of both parties. Mediation, in contrast, provides every such opportunity.

Even the most far-sighted and flexible mediated settlements, however, occasion­ally require modification. For example, children’s needs change, and changes in employment status or relationships with new partners can affect support pay­ments. Unless your MSA specifically states otherwise, you and your spouse can modify the terms of your settlement as necessary over time, either by mutual consent or by court order.