Other than the death of a parent or family member, going through a divorce is probably the toughest thing you will deal with in your lifetime. Let’s face it, it’s not a happy time for most people, even though it should be (but that’s a story for another article).
A divorce ends in one of two ways. Either the parties settle amongst themselves and sign a contract commonly known as a Marital Settlement Agreement (MSA) or Property Settlement Agreement (PSA). Or, the parties don’t settle and go through a trial and the court decides all the issues in a Judgment of Divorce. In either case, all the terms of the parties’ post marital life are spelled out.
When I say terms, I mean everything from alimony to custody to who gets what financial accounts. When a court decides, it only includes the main points in the Judgment of Divorce and that leaves a lot left out, which often leads to the parties appearing in court later fighting over things.
However, when people settle and draft an MSA, it typically is more detailed, including language that covers items that seem obvious and unnecessary at the time. This is because the less detailed the agreement is, the more likely the parties will likely be back in court and fighting over something that either is not in the agreement or is in the agreement, but not clearly written and up for interpretation.
If you don’t have an attorney and are representing yourself, I highly suggest you have a professional draft and review any settlement agreement before the court finalizes it. That money will be well spent. Once the MSA is executed, it is very difficult to change later.
A complete MSA can easily be 50+ pages. That’s because this document is your Bible for your post marital life. It outlines everything both parties are supposed to do and when. If there is ever a question about who does what, you look in the MSA and hope the answer is clearly defined. Otherwise, back to court you go and nobody wants that.
That being said here are five items that every settlement agreement should contain. This is by no means an exhaustive list, but rather is meant to get you thinking.
1. Clear Alimony provisions.
Not every divorce includes alimony, but the ones that do need to have very clearly written language that outlines who pays what, for how long and when. If there are any circumstances where alimony might cease, or change before the agreed upon end date, those instances need to be clearly defined in the MSA. Anything that may affect alimony must be clearly defined. If it’s not, that is inviting what is called Post Judgment Litigation, when the parties can’t agree on what is supposed to happen and go back to court.
2. Custody Issues Through Emancipation.
When children are involved, then custody has to be resolved in the MSA. It’s not as simple as saying Mom has custody of the children and Dad can see them 4 days a week. Every state has it’s own laws on custody and when a child is emancipated (no longer required to be supported by the parents). Any MSA worth the paper it’s written on must include painfully detailed language that covers almost every conceivable scenario that may involve the children after the divorce.
That means the parenting time schedule, including who picks up the children at what times and the location. Include language about the procedure to follow when one parent cannot make the scheduled time. This is even more important for parents who have trouble communicating with each other. Include language about summer vacation and college. If the parents both agree NOT to contribute to the college expenses, then that should be clearly defined in the MSA. Some states have laws that practically force parents to contribute, but if both parents agree not to, that should be explained in the papers.
Include child support provisions and how the amount of support was calculated. Explain what that number includes and what it does not. For example, does the child support include camp or extra-curricular expenses? The more detailed you can be the better.
3. Procedure For Post Divorce Litigation.
When the parties don’t agree on what the MSA says after the divorce is finalized, the MSA should lay out what the procedure is to resolve the dispute. For example, if one party doesn’t pay something in accordance with the MSA, before everyone goes to court to fight it out, the MSA might have a mediation provision that requires the parties to attend mediation and attempt to resolve their dispute before going to court.
4. Division of Property.
Some people have a lot of personal property that needs to be distributed and others not so much. Either way, you need to outline who gets what and when it should be delivered and the manner of delivery. Make a list of every item of property and put the person’s name that gets that item next to the item description. Include this list in the MSA.
5. Allocation of Retirement Accounts.
Most people have retirement accounts that need to be accounted for in the MSA. If each spouse keeps his/her accounts, that should be clearly explained. List each account and the last four digits of the account number. Explain the procedure for how each account will be distributed. This is most commonly done by what is called a Qualified Domestic Relations Order (QDRO). Each company has it’s own procedure for doing this, so do some research before the MSA is finalized and incorporate that procedure in the language.
Author Bio:
Jason Levoy is an attorney and the founder of Your Divorce Resource, which teaches people how to represent themselves in court and throughout their divorce. You can find him at http://jasonlevoy.com.
