If you are getting divorced, you will need a Marital Settlement Agreement. A Marital Settlement Agreement (MSA) is a legal document used in New Jersey that spells out the terms of a divorce and provides a framework for the relationship between former spouses after divorce. In New Jersey, MSAs are also sometimes called Property Settlement Agreements. While many couples have only marital property and debts to consider, many others, particularly those with minor children, need a more comprehensive agreement.
Information found here about Marital Settlement Agreements includes the following:
- What Information is Listed in a Marital Settlement Agreement
- MSAs vs. Separation Agreements
- Marital Settlement Agreements and the New Jersey Divorce Process
- Preparing a Marital Settlement Agreement
- Enforcing a Marital Settlement Agreement
- Changing the Terms of a Marital Settlement Agreement
What Information is Listed in a Marital Settlement Agreement
Depending on your individual needs at the time of divorce, your Marital Settlement Agreement should cover some or all of the following:
- Financial Information (assets and debts) that can include personal properties, bank and other accounts, insurance items, tax issues or other.
- Alimony or Spousal Support information may be factored in if applicable.
- Children & Parenting Time items that can include child custody, child support and visitation considerations.
- Any other important and legally enforceable issues related to your divorce.
The New Jersey family law attorneys at Weinberger Divorce & Family Law Group know precisely what terms are critical to include in a Marital Settlement Agreement and how best to include them. We can prepare your MSA from start to finish, or we can review your existing drafted MSA and advise you on its quality.
MSAs vs. Separation Agreements
Sometimes spouses wish to separate before making a final decision about divorce. In this kind of situation, an agreement can help clarify financial, property and parenting arrangements during the separation period.
A separation agreement can address anything that an MSA will eventually address, although the concerns at this stage are usually slightly different. For example, if the spouses are not yet ready to divide property, the separation agreement can “freeze” assets and debts, preventing either spouse from selling an asset or incurring additional debt during the separation. The agreement can specify how the couple will handle payment of the mortgage, rent, and other household bills during the separation, and what will happen if the couple does not ultimately reconcile within a specified time period.
Unlike a final Marital Settlement Agreement, a separation agreement is not filed with the court. If properly executed, however, it is legally binding between the spouses, and can form the basis for the final MSA.
If you and your spouse wish to enter into a separation agreement, an attorney at Weinberger Divorce & Family Law Group can help you make sure that your agreement is valid and will hold up in court. It is important to understand, however, that a legal separation agreement between you and your spouse is enforceable only in basic contract law; the family court will not accept it as an official filing or enforce it as an order in your case.
For more information about legal separation prior to divorce, see: New Jersey Legal Separation
Marital Settlement Agreements and the New Jersey Divorce Process
In a contested divorce, spouses often spend a significant amount of time and money litigating issues, only to have a judge end up making the final decisions. In an uncontested divorce, couples control their own results and bypass much of the lengthy court process. Couples who choose an uncontested process from the start can enter into a written MSA either before or soon after filing for divorce.
Couples who start out in a contested process always have the option of negotiating an MSA and converting to an uncontested divorce. An uncontested divorce typically moves faster and results in less hostility between former spouses, which is a positive outcome for all people involved, especially any children of the marriage.
Preparing a Marital Settlement Agreement
Some couples are able to construct a basic MSA without professional assistance; others need help from an attorney or family law mediator. Couples with more conflict should consider using an attorney as they can negotiate all or part of a Marital Settlement Agreement. Even spouses with few disagreements can benefit greatly from individual attorney representation. An attorney will review the MSA and make sure that you understand how it compares with what a court might order.
By entering into an MSA and asking a judge to accept it, you are waiving your right to a trial. Neither a judge nor a mediator will represent your interests in the divorce. Judges generally do not review an MSA at all; they merely take testimony to determine that both of the parties agreed to the terms voluntarily. A judge does not pass judgment on the merits of the agreement itself, nor do they review it for fairness.
Enforcing a Marital Settlement Agreement
Be sure to include all terms and agreements made with your former spouse that you want a court to be able to enforce in your written MSA. Make the terms as specific as possible to prevent dispute or litigation in the future.
If you are getting along with your spouse, it can be tempting to leave some things out to be finalized later. The court will not enforce any terms that you do not incorporate into your signed agreement. Make sure to cover every eventuality as completely as possible. Your agreement should also include a method for negotiating any future disagreements.
Once signed, the final MSA is binding between the parties. It is generally also incorporated into the final decree of divorce so that it becomes as enforceable as any other court order. It may also be merged or partially merged with the divorce decree, which affects enforceability under contract law.
Your attorney can give you more information about how and under what circumstances a court is likely to enforce your MSA.
Changing the Terms of a Marital Settlement Agreement
You and your spouse can amend your MSA after it is filed with the court if you both agree that a change is appropriate. In this case, you may consider attending mediation before either of you files a modification request in court.
If one of you disagrees, the other can file a motion in court asking for a modification. The court always retains the power to modify terms relating to child custody and support in the event of a substantial change in circumstances. Terms relating to spousal support are also modifiable unless the MSA specifically states that they are not. Provisions relating to asset and debt distribution cannot usually be changed once the divorce is final, except perhaps in circumstances of nondisclosure.
We know you do not want to make any mistakes in your divorce. If you need to negotiate a Marital Settlement Agreement with your spouse or ex-spouse, our and skilled New Jersey divorce attorneys can make sure that your agreement meets your current needs and safeguards your future needs.