Marital Settlement Agreements

An Overview of Marital Settlement Agreements

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 the following:

• Child custody and visitation: This is usually dealt with in a parenting plan or custody and visitation agreement that is attached to and incorporated into the MSA
• Child support: This is generally determined by using a state-specific child support guideline or formula to help parents calculate the appropriate amount of child support
• Alimony (also called "spousal support" or "maintenance"): Spouses can negotiate over the amount and duration of alimony. Unlike child support, there are no hard and fast rules about calculating alimony, but some states do have guideline alimony formulas to help couples come up with an estimate, and
• Division of marital property and debts: This will depend on the marital property laws of your state and whether your state follows an "equitable distribution" or "community property" model of property division.

Reaching a Marital Settlement Agreement

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 professional help.

If you don't believe you can write up your own MSA and you want legal advice, you and your spouse can 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 divorce mediation, where a trained, neutral mediator will try to help you and your spouse reach agreements during private, three-way meetings. If you have an attorney, you can ask your lawyer for legal advice before and during the mediation process. You can also 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 a Martial Settlement Agreement

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:

• your ex-spouse failed to make child or spousal support payments
• your ex-spouse failed to maintain health, dental or life insurance policies
• your ex-spouse has not paid for the children's college education and expenses, and
• your ex-spouse is in default on your mortgage payment.

Particular Issues Regarding the Enforcement of Child Support Orders

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:

• Wage Garnishment – child support payments and/or arrears (back support) come right out of the paying parent's pay check.
• Property lien or encumbrance – a lien or encumbrance against property for arrearages (amount owed).
• Revocation of professional and other licenses – delinquent parents may have their driver's licenses or professional licenses revoked.
• Passport restrictions – delinquent parents will not be able to obtain or review passports to travel abroad until past due child support is paid.
• Jail time – the court may sentence delinquent parents to serve jail time and pay fines.

Getting Help

If you have questions about enforcement matters or other divorce issues, contact an experienced family law attorney in your area for advice.