Nolo's Essential Guide to Divorce - Emily Doskow [149]
p to this point, the term "marital settlement agreement" may have seemed abstract. You know you need one, but why is it important? And where will it come from? If you've already worked out some issues with your spouse, or even just begun discussing them, then you're already making progress toward your final agreement. This chapter will answer those questions and outline the issues that you must be sure to address in your agreement. And, to show you what the final product might look like, there's a sample agreement at the end of the chapter.
Even if you think your divorce will end up in a trial, you should still try to come up with an agreement on at least some of the issues, and not leave every decision to the judge. And keep in mind that most contested divorces end up settling out of court frequently at the last minute. Any work you do negotiating a settlement agreement won't be wasted.
The only times you don't need a settlement agreement are when you're getting a summary divorce, or when you've already divided everything and your state's forms give you room to include those agreements.
What It Is, What It Does
A marital settlement agreement (sometimes shortened to "MSA) is the document that spells out everything you and your spouse agree to regarding property, custody, and support. It describes:
• how you intend to divide your property and debts
• your agreements about child and spousal support
• how you will share parenting responsibilities, and how you will deal with any issues that come up relating to raising your children, and
• how you will deal with any conflicts that arise later.
Commonly, these agreements contain a lot of detail. For example, yours might set out whether support will be paid by check or by automatic transfer and how you'll choose the real estate agent who will list your house.
Once you've finalized your MSA, you submit it to the judge, who approves it and makes it part of your final divorce order. Because the agreement has the force of a court order, both parties are likely to comply with its terms, which gives everyone some degree of confidence about the future.
Creating the Agreement
To create a marital settlement agreement, you and your spouse must make hard decisions about your property and your children. There are many issues to consider and negotiate. To make sure that your agreement addresses everything it should, refer to the checklist below. You may not need to include every single item in the agreement itself-for example, if neither of you changed your name when you married, you need not include a section about returning to your old name. But you should touch on all of them in the negotiations, if only for the purpose of confirming they don't apply to you.
When you've covered everything, your agreements must be put in a final document. If you use mediation or hire a lawyer, then the mediator or lawyer will likely prepare the settlement agreement for you. Or you may want to start with a free template from the Internet, and use it along with books and other Internet research to create a draft agreement, which you then have reviewed by lawyers. Another option is to pay an Internet business to gather information from you and then prepare an agreement for you, or pay a legal document preparer (if this service is available in your state) to do the same thing. Chapter 16 has details about each of these options.
Most of these issues are included in the sample agreement at the end of the chapter.
Negotiations
Negotiating with your spouse and putting together an agreement will take time, so be patient and put the priority on doing it right, not doing it quickly. This section addresses each issue that you'll need to include in your agreement.
At the end of this chapter, there's a sample MSA for a fictional couple, Cynthia and Howard. Their divorce isn't the very simplest divorce-or the most complex-a couple could possibly have. Their negotiation process is described throughout the chapter, to give you an example of how the issues in a negotiation work together and how the process