What is a Marital Settlement Agreement
The marital settlement agreement, often referred to as a MSA, is a written contract between a husband and wife which resolves all issues related to their marriage, divorce, and/or paternity. Generally speaking, this means issues related to equitable distribution, alimony, parenting plans, child support and other monetary issues.
When properly prepared by the attorney for one spouse and signed by both parties , the marital settlement agreement contains terms that – in general – must be honored by the parties (in the absence of some unforeseen circumstance) and may be incorporated into a court order if it is specifically addressed therein. The marital settlement agreement is a holistic document that covers all issues and is generally treated as a contract (meaning that a court will not re-write it) by the referring judge. Often, the referring judge will maintain jurisdictional authority over the incorporated marital settlement agreement bars time to enforce the agreement.
Essential Elements of a Florida Marital Settlement Agreement
In a divorce in Florida, a key document created in the process is the "marital settlement agreement." In it, there will be a number of important provisions all interlinked with one another. For example, there can be a disposition of the marital bank account: ordered to be split up. Then, another part of the marital settlement agreement provides for an alimony award of $1,000 per month to the requesting spouse. And then, still further, the marital settlement agreement provides that the real estate goes to the other spouse with the payment of $2,000 per month from the spouse receiving the property. What you have there is a situation where item 1 (bank account split up) has money to pay item 2 (alimony award) but also item 3 (real estate $2,000 per month payment) meaning there is no money left over. All or nothing? Not necessarily but without careful calculations, you run the risk of creating a deal where, if one of the supporting elements – the bank account split or real property payment – is not correct or one spouse decides not to pay it, then you do not have enough left to pay the award of alimony. Worse yet, you could end up with a dispute on what all this means and you may find yourself in for more litigation to figure it all out.
As you can see, the devil is truly in the details and you do not want to just have a lawyer throw together a boilerplate marital settlement agreement which does not necessarily fit your case. At every turn, you face the challenge of accurately forecasting what the marital settlement agreement will look like – and you need the lawyer to take it on himself to ask you the probing questions to figure out the nuts and bolts of the marital settlement agreement. All of this ties into the well-known notion in Florida that the court cannot divide the parties’ property or award any alimony until the assets and liabilities are calculated in full. That is, you cannot just do alimony in a vacuum and you cannot just divide the property without awarding alimony. You must fully understand the financials behind the family to do it correctly.
In fact, this is why we always recommend experts when necessary on real property issues such as homes or business appraisals or goodwill arrangements. The reason is simple – you want the value for what it is really worth and you don’t want to be back in Family Court litigating over the interpretation of conflicting appraisals later on. Also, you must remember – in the real world – that the awarding of alimony alway takes into account the overall financial picture and the potential collaterall issues. A good marital settlement agreement anticipates the likely outcomes and clearly lays them out as best as possible so that there won’t be any problems later on.
Most importantly, you must have the concepts clearly laid out so that there is no dispute or difference of interpretation so that the judge will know exactly what you intended to do. Remember – the judge may ultimately have to interpret the marital settlement agreement at some point and you want the judge to clearly understand the intent of the parties in entering into the marital settlement agreement. If the judge is confused by how the marital settlement agreement is drafted, then the only result will be more litigation down the road. This is why the drafting of a marital settlement agreement is so critical to the entire process and must be done with foresight, attention to detail, and with the understanding of the process behind the entire Family Court proceeding.
How to Draft a Marital Settlement Agreement
Florida courts generally require a Florida divorce case to be resolved through the submission of a marital settlement agreement to the court. The process of drafting a marital settlement agreement follows seven basic steps:
- It’s essential that both parties fully disclose all income and property;
- All transfers must occur by present deed or assignment so that no future transfers are required;
- The choice of alimony should be carefully considered;
- The choice as to who pays which debts requires some thought;
- If the Florida divorce involves children, the agreement should be reviewed by the Florida Department of Revenue concerning the child support guidelines;
- In Florida, the finalization of the marital settlement agreement should be accompanied by a parenting plan that deals with all issues concerning time-sharing, parental responsibility, and child support;
- In some Florida counties, the attorneys are required to sign a certificate showing that they met with the parties and discussed the advantages and disadvantages of going to trial versus entering into a marital settlement agreement.
Legal Conditions and Validity of a Marital Settlement Agreement
A marital settlement agreement in Florida must be appropriately titled and identified as a "marital settlement agreement," and must be signed by the Husband and Wife. A material provision or term of the agreement must be unambiguous and dependent only upon the parties and the parties’ joint actions for it to be enforceable after entry of a final judgment of dissolution of marriage. The final judgment of dissolution of marriage may incorporate the terms of the agreement within its four corners to become enforceable after entry of the final judgment. The marital settlement agreement may be incorporated into the Final Judgment of Dissolution of Marriage as is done with a child custody and support agreement set forth in Fla. Stat. § 61.30 where there are minor children or the final judgment may incorporate the agreement by reference only.
However, a final judgment (whether referenced or incorporated) cannot enforce or incorporate a provision or term that is not either explanatory, advisory or actually enforceable by the Court. Further, the final judgment itself is required to be unambiguous and sufficiently certain to inform the parties of their rights . If an incorporation by reference is used, a final judgment of dissolution of marriage may not created an enforceable obligation on the part of the Court to consider compliance with the terms of the marital settlement agreement nor can the marital settlement agreement impose an affirmative duty on the Circuit Court.
At no time may the requirement of a falsified promise be incorporated into a marital settlement agreement. Even if it exists that the parties are required to undertake some action after the final judgment is entered for it to live as an enforceable document, the standard for enforcement is not whether the parties acted in compliance with the agreement.
A Circuit Court lacks authority to adjudicate a marital settlement agreement that is unambiguous and sufficient in accordance with its terms. The Circuit Court can only enforce the agreement and cannot create a new substantially modified agreement. Further, a rule exists that if a final judgment is appealed, it does not prevent the Circuit Court from enforcing the agreement. This rule exists based on the fact that an appeal of the final judgment is only an appeal of the judgment and is not an appeal of the marital settlement agreement.
Advantages of a Marital Settlement Agreement
Mutual agreement can resolve issues expeditiously
Marital settlement agreements enter into a divorce proceeding are often advantageous because of the costs that can be avoided. A marital settlement agreement is a negotiated contract entered between two parties that outlines the settlement terms of their pending divorce. One of the primary reasons a marital settlement agreement is attractive for all parties is that it usually saves both time and money.
The divorce action that is pending when the parties do not have a marital settlement agreement can be costly because of the expense of getting to the point of trial. A divorce proceeding requires a heavy investment in attorney’s fees, expert witness fees and various other fees involved in preparing for trial. These costs multiply with the length of the trial of the contested issues.
An attorney experienced in divorce proceedings is critical to ensure that the details of the divorce are carefully crafted in compliance with current law with appropriate attention to the goals, needs and desires of the individual client. A great deal of time is spent by the lawyer and the client in the period prior to trial regarding information-gathering, researching the law, and preparing for trial. A divorce is one of the most expensive proceedings that can be undertaken in a civil lawsuit.
In contrast, a marital settlement agreement may provide the means to resolve all contested issues without an expensive, drawn-out trial. This may include the division of assets, alimony, child support, and timesharing of minor children if any. A divorce is one of the most costly civil actions that a client can initiate. However, when issues have been resolved before trial it is more likely that both parties will be willing to pay court costs and attorney’s fees without additional pleadings being necessary.
When a marital settlement agreement is entered into between the parties, it is likely that all issues will be resolved with a minimal amount of court involvement. A written agreement is executed that addresses every issue that has been negotiated by the parties. The process begins with suggestions from each party of how the issues should be settled. A back-and-forth process continues until a full agreement is reached.
Once all issues are agreed upon, either attorney prepares the pleadings that are necessary to submit to the court for the dissolution of marriage. The marital settlement agreement will also be submitted to the court. No contested issues are presented to the court.
There are many factors that should be considered when deciding whether to enter into a marital settlement agreement in Florida. However, the process is usually quick and allows both parties to focus on moving forward after the divorce.
Common Questions
Can I revise a marital settlement agreement after I’ve signed it?
Yes, parties to an agreement may renegotiate their terms. However, any changes must be in writing and signed by you and your spouse. If a marital settlement agreement has been incorporated into your final judgment, it cannot be modified except by a court order or stipulation of both parties.
If we go to mediation , do we have to follow the agreement we reached?
Most marital settlement agreements will include language saying that both parties understand that our agreement is voluntary and made in good faith. If one party believes the other has not made a proper disclosure or that the agreement is unconscionable, the court can hold a hearing to determine whether the case should be settled on the terms agreed to.
What happens if we disregard our marital settlement agreement?
A marital settlement agreement that is incorporated into a final judgment usually becomes enforceable once it is filed with the court. However, it is also enforceable as a contract and may be pursued that way.
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