What Should Be Included in a Marital Settlement Agreement

January 25, 2022


Gerri Duswalt

 A marital settlement agreement (typically referred to as an MSA), should resolve all of the issues in the divorce and can be entered into at any time before, or during the divorce process. It should be completed prior to the entry of a Judgment of Divorce.  The document should include issues such as alimony, child support, custody, parenting time, life and health insurance, division of property, division of assets, debt and liability and future rights and responsibilities.

A marital settlement agreement (MSA) is a legal document that spells out the terms of the divorce and provides a framework for the future relationship between former spouses after the divorce.  If the court accepts the marital settlement agreement (MSA) and makes it a part of the divorce judgment then it is binding as if it was a Court Order.  The terms can only be modified later by agreement in the form of a written document signed by the parties and a judge.  The terms include both the financial obligations of the spouses and if they have children, issues relating to the minor children such as custody, parenting time, and child support.

Depending on your individual needs at the time of divorce, your Marital Settlement Agreement (MSA) should cover some or all of the following:

  • Financial Information, including the payment of debts and the distribution of assets. This can include personal properties, bank and other accounts, insurance items, tax issues, proceeds from a lawsuit, inheritance, or other.  The terms can provide for those debts and assets that are considered separate property of one spouse and those which are joint assets or debts.
  • Other financial considerations include division of retirement assets, health insurance for spouse and children, inheritance, and life insurance, and tax issues.
  • Alimony or Spousal Support information may be factored in if applicable, which include the length of time alimony is paid, when it may end, and what happens if there is a change of circumstances or one party retires.
  • Children & Parenting Time items that can include child custody and parenting time, child support and other parenting considerations.
  • Any other important and legally enforceable issues related to your divorce.
  • The marital settlement agreement (MSA) can also dictate how your future disputes will be handled, and whether you are required to attend mediation before you file for relief with the court. The document can also have provisions for what happens if there is a change of circumstances in your life, and whether you can ask the court to change the terms of the agreement if there is a change in your life. 

The MSA can have long lasting impacts on the future of you and your family and it is therefore important to have this carefully and thoughtfully prepared by an attorney.

Can a MSA be set aside or changed?

The answer depends upon the circumstances and the wording of the document.  A court may set aside an MSA if it is contrary to public policy, if the terms are considered unconscionable, or if there is a substantial change in circumstances of the parties. The courts favor agreements made voluntarily between litigants, so unless there is a good reason, the court will not likely change the agreement.

What happens if your spouse does not follow the MSA? 

If that occurs you would have to file a formal motion with the court for enforcement, or claim a violation of litigant’s rights. Some reasons to bring a motion would be that your former spouse is not paying either alimony or child support, payments are late or not complete, failure to divide retirement benefits, failure to obtain or maintain insurance, such as life or health insurance. Other reasons could include refusal to pay for college or adhere to the agreed upon parenting schedule.  The chance of succeeding in such a challenge depends in large part on the skill with which the MSA was initially prepared and whether the case was properly evaluated at the start.

The MSA cannot take into consideration every issue that might arise after the divorce or address every contingency, but a well drafted document will seek to anticipate events that may be foreseeable, such as providing for college, and be flexible to address most situations that arise after the divorce.  The goal should be to avoid returning to court after you are divorced.  

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