A "marital settlement agreement" goes by several names depending on where you live. In some states, they're "divorce settlement agreements" or "separation agreements." In California, for example, they are typically called "marital settlement agreements," and that's the term we'll use for the purposes of this article.
A martial settlement agreement ("MSA") is a legally-binding, written contract, which is entered into by divorcing spouses. An MSA resolves issues related to the couple's divorce, which can include:
Some couples are able to reach agreements regarding all divorce-related issues on their own. They may sit down at their kitchen table and talk it all out. They may even be savvy enough to write up their own agreement. We're not suggesting you try this all on your own. If you have little to no assets and no children, you may be able to work it all out. But, if you have children or more than just a few assets, you'll probably want some legal advice.
If you don't believe you can write up your own MSA, you and your spouse will have to hire your own attorneys (one attorney cannot represent the both of you). Your attorney should explain your legal rights and responsibilities as they relate to the custody and support of your children, alimony and property. Once you have a clear understanding of your rights, you'll be in a better position to make sound divorce decisions.
Your attorney can also take the lead on drafting, reviewing and revising the MSA and can negotiate on your behalf, if necessary. Hiring an attorney to handle your MSA can be a very wise decision and may help ensure that your MSA will hold up in court.
Another alternative is to go to a trained mediator – a neutral third party who tries to help you and your spouse reach agreements during private, three-way meetings. Attorneys are not present during mediation sessions, but you can ask your attorney for legal advice and have your attorney review any proposed agreements before you sign off.
Whatever way you reach the MSA, it must signed by both spouses (and your attorneys if you're represented). Then, it will need to be incorporated into your judgment of divorce, so that a judge can review and approve it. Once that happens, the terms of your agreement are considered court orders that must be followed by both parties.
Enforcing an MSA must be done by filing a formal request or motion (legal paperwork) with the court. You will need to show the court how your ex-spouse failed to follow the terms of the agreement. There are many reasons you may need to ask the court to assist you with enforcing your agreement. The most common reasons include the following:
Because of the very strong national policy to support the health, safety and welfare of children, the enforcement of child support orders is unique. All states have laws that specifically address the failure to pay child support, and judges don't like it when parents fail to make court-ordered child support payments.
If your ex has stopped paying child support, you have a few different options. You can go back to the divorce court that issued the original child support order and ask a judge to enforce the order and direct your spouse to pay. The judge can issue a variety of orders to encourage your spouse to pay and can also hold your ex in contempt for the failure to pay – this can result in fines or even jail time.
Alternatively, you can ask for help from your local Department of Child Support Services ("DCSS") office. You simply bring your child support order with you to the local DCSS office, and ask them to open an enforcement case against your ex.
Although laws vary from state to stay, generally, the courts and DCSS may employ any of the following against your ex in order to force your ex to pay:
If you have questions about enforcement matters or other divorce issues, contact an experienced family law attorney in your area for advice.