Marital Settlement Agreements
The Marital Settlement Agreement (MSA) 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, provis-
Divorcing or separating couples don’t have to create an MSA to complete their divorce or separation. They can instead pursue 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 agree terms in mediation. Your mediator will guide you through all the issues of the divorce. You may consult specialists (accountants, appraisers, independent attorneys, etc.) before, during, or after each session 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. An independent attorney or Legal Document Assistant (LDA) typically prepares the MSA according to the terms indicated in the MoU. You may use any professional on whom you both agree for the preparation of your MSA. You may alternatively use our “attorney-in-residence” — an independent family law attorney — for this service.
The MSA is then filed with the court (as an attachment to form FL-180) and incorporated into the final decree of dissolution of marriage or legal separation. You may file the MSA yourself. Alternatively, you may ask either an attorney or a Legal Document Assistant to file the MSA for you.
Durability and Modification of an MSA
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, occasion-