We Settled Our Divorce Issues. What’s Wrong with Writing Our Own Agreement?

by Deena L. Betze, Esq.

So, you settled your divorce issues. Now what?

Whether you settled in court, through mediation or the collaborative process, or at your kitchen table, you need to put all the terms of that settlement in a comprehensive, written agreement. It’s called a marital settlement agreement (or “MSA[1],” for short) which is signed by both parties and ultimately incorporated into and made a part of your final judgment of divorce that the judge signs and which is then filed with the court.

A well drafted MSA should keep you out of court in the future, and a well-written one makes all your rights and responsibilities clear in the event of a future dispute or question. If a post-divorce dispute arises, the MSA will help you settle the dispute or, in the event of a dispute you cannot resolve, will provide a method of dispute resolution, such as mediation, the collaborative process, or court. In the event there’s a dispute regarding the agreement that cannot be resolved out of court, and you do end up in court post-divorce, a well-drafted MSA should provide the judge, who is a stranger to the facts and circumstances of your case, the meaning and intent of your settlement terms. In other words, you and your ex-spouse each may know what you meant, but the agreement should specifically “spell it out” in detail so the judge will know and understand exactly what you both intended. Only a well-written MSA can provide that clarity.

There are many subjects that can and should be included in a comprehensive MSA and, depending on the particular facts and circumstances of your case, such agreements can be rather long and detailed. That doesn’t necessarily mean that the MSA should be complicated – just thorough. Again, the agreement is likely going to come into play in the future if it’s being interpreted by a stranger to your case, be that a mediator, arbitrator, or judge. So, it is best to use plain language and clear explanations. That means it’s important to include relevant details such as dates, incomes, amounts of assets and debts, beginnings and endings of obligations and the consideration for the agreements you each are making.

Not only does the MSA set forth the specifics of your agreement, the basis for your settlement, and your rights and responsibilities — it also covers a number of contingencies that should be reviewed and addressed before you and your spouse sign off and conclude your divorce. It also includes a lot of “boiler-plate” legal language that is highly important.

What’s in a Well-Crafted MSA?

Ideally, your MSA will include the basic agreements between spouses regarding custody, parenting time, support obligations, and distribution of assets and debts. Often, however, other important issues are overlooked or the spouses don’t know they should be included. Some examples of things that should be in a well-drafted MSA but are often overlooked include the following:

• What happens when a child graduates high school?
• How will college and child support be handled when a child goes to college?
• When does alimony end?
• What happens when alimony ends? How does child support get reviewed and revised?
• Insurance issues:
  • Will life insurance be required to secure child support/alimony?
  • How much life insurance will be required?
  • Who must be named beneficiaries of required life insurance policies?
  • Which parent will provide health insurance coverage for the children?
  • What happens to health coverage for the non-employee spouse upon divorce?
  • How are uncovered medical bills of children to be handled?
• How will taxes be filed? Who will claim tax benefits for the children?
• How are attorneys’ fees to be paid?
• What happens when the payor of alimony retires?
• What happens if someone violates the agreement?
• What happens when one of you dies?

These are just a few of the issues that can and should be addressed in a well-drafted MSA. In addition, there’s important language regarding such legal issues as voluntariness, full disclosure, and lack of duress that help make an agreement enforceable and can prevent later legal attacks on the MSA which should be included in every MSA.

An experienced family law attorney can assure not only that all your settlement terms are accurately set forth in a comprehensive MSA, but also that all the provisions you need to protect yourself, your children, and your future, to the extent possible, are covered. The family law attorneys at BorgerMatez, P.A. are experienced in drafting thorough, understandable, and enforceable MSAs. Call us today for a consultation.

[1] In some parts of New Jersey, this document was and my still be referred to as a Property Settlement Agreement (PSA).

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BorgerMatez, P.A. is a Cherry Hill, New Jersey law firm which concentrates its practice in the area of family law and whose attorneys are familiar with and experienced in alternative dispute resolution.  Contact us at 856-424-3444 or use this form for a consultation with one of our attorneys, all of whom have more than 30 years of experience.