Marital Settlement Agreements

Why Enter Into a Marital Settlement Agreement?

Most divorce cases can and should be resolved by the parties entering into a marital settlement agreement or “MSA” rather than by a judge in litigation. A settlement agreement is a contract between the parties that resolves all of the issues pending before the Court. This is often a cost-effective way to resolve issues outside of court. It also enables the parties to create their own settlement terms and conditions, rather than having an unknown third party, a judge, decide your fate. This provides a mechanism for parties to agree upon creative settlement terms that a court cannot otherwise order. A marital settlement agreement can be negotiated through mediation or simply between the parties and their respective counsel. A marital settlement agreement governs the relationship between the parties after the divorce and it should encompass all terms of the divorce settlement. After execution of a marital settlement agreement, it will be adopted and ratified by a court order with the entry of a Final Judgment of Dissolution of Marriage. Thereafter, the MSA is binding upon the parties and is subject to the enforcement powers of the court.

What Is Family Mediation?

Family mediation is a process whereby a neutral third-party mediator acts to facilitate resolution of the issues between the parties through an informal and non-adversarial process to ultimately achieve a mutually acceptable agreement. Family mediation addresses all family issues of both married and unmarried persons. Family mediation can address parental responsibility, equitable distribution and property division, child support, alimony, time-sharing, visitation, parenting plans, management of a family owned business, and any other related issues to be resolved by the parties in a dissolution of marriage proceeding. Negotiations are primarily conducted between the parties through the third party. We highly recommend attendance of counsel, and the forensic accountant or psychological expert, if needed, although it is not required.

What If I Want to Settle With My Spouse Without Mediation?

The parties may also wish to negotiate an agreement on their own or through counsel, without a mediator. Having a clear and precise MSA is essential to achieve a functioning home situation post-divorce. The parties would reach an agreement between themselves, then, one of the attorneys prepares an initial draft of the MSA and with his or her client’s approval, sends the draft MSA to the other party, through his or her counsel, for review and comments. The parties usually exchange drafts of the MSA to articulate their understanding of the settlement and their respective positions. The parties will execute the MSA with their final terms and ultimate agreement. The MSA does not have to be filed with the court to be binding and effective; only that the judge enters an Order adopting and ratifying the MSA.

Then, a petition for dissolution of marriage is filed and the MSA is presented to the court. The judge will schedule a short (usually about ten minutes) uncontested divorce hearing, in which the judge will enter the Final Judgment dissolving the marriage and adopting the MSA. If you have initiated a divorce proceeding, to fully resolve it and to avoid bringing a separate action for enforcement, the MSA should be incorporated into a final judicial decree. Absent any evidence of fraud or duress, and if the court finds that both parties executed the agreement voluntarily, the court will enter the final judgment incorporating the parties’ marital settlement agreement.

The attorneys at Hertz • Sager have over combined 40 years of experience in negotiating and drafting marital settlement agreements for high-asset divorces and complex family issues. Their quality of work, legal expertise, drafting skills, and negotiation strategies guarantee a well-drafted and comprehensive marital settlement agreement. Their excellent communication skills ensure not only that your needs will be addressed, but that you will be fully informed throughout the negotiation and/or mediation process. Contact us if you need assistance with drafting your marital settlement agreement.