A Marital Settlement Agreement can also be known as a Divorce Settlement Agreement, Marital Property Settlement Agreement, or Marital Dissolution Agreement.
What is a Marital Settlement Agreement?
This a contract that details the financial and logistical aspects of the divorce: the division of assets, child custody and plans, financial support, division of marital expenses as well as child expenses moving forwards, alimony and support, attorney fees.
The Marital Settlement Agreement is the be-all of your divorce.
It either sets up your future in a way that is helpful or not by establishing all the ground rules.
If you are forced to litigate in the future, the Judge will refer to this contract to see what you and your ex agreed to.
So if you agree to something here it is potentially binding in perpetuity.
This is my Marital Settlement Agreement I signed when my divorce finalized.
Marital Settlement Agreement Mistakes
I want to take a moment and just briefly mention the glaringly obvious mistakes, or omissions, that I made on my Marital Settlement Agreement. These omissions needed to be relitigated in divorce court.
While I take responsibility for my errors, ultimately it is one of the worst my post-decree divorce attorney had seen. (His words)
Because it's silent on so many developments in my child's needs.
It doesn't cover school, extracurricular activities, camps, lessons or field trips.
It's vague when specificity is needed.
In fact, my Marital Settlement Agreement is the partial force behind my needing to litigate again since Mr. X didn't want to work collaboratively.
These awful holes were a product of my ignorance and my divorce attorney's ineptitude.
I was afraid of the fight. In hindsight, had I gone into the courtroom, I think I would have been less so.
Divorce Checklist Lessons:
- List out the expenses that your child will have all the way through college. Then decide on what percentage of each expense each party will bear. Most importantly, get that in writing in your Marital Settlement Agreement. Include everything from school to sports to birthday parties.
- Get everything specified in writing including any special needs or medical issues. If you don't specify them you may have another battle on your hands - one spouse doesn't think the child has autism or whatever other special needs.
MARITAL SETTLEMENT AGREEMENT
THIS AGREEMENT, made and entered into this 8th day of January 2009 by and between Mr. X (hereinafter "Husband") and Rachel Beck (hereinafter "Wife.");
WHEREAS, the parties hereto were lawfully married on February 3, 2005 and said marriage was duly registered in XXXXXXXXXXXXXXXXXX.
WHEREAS, the said parties are husband and wife, between whom differences and disputes have arisen; and
WHEREAS, the husband has instituted a marital action against the wife in the Circuit Court of XXXXXX being Case No XXXXXXXXXX and
WHEREAS, the parties, without any collusion as said proceedings, hereby consider it to be in their best interests to settle between themselves now and forever their respective rights of property, dower rights, rights to maintenance and support and any and all other rights of property or otherwise growing out of the marital relationship existing between them and which either of them now has or may hereafter have or claim to have against the other, and all rights of any kind, nature, and description which either of them now has or may hereafter have claim to have in and to any property of every kind, nature and description, real, personal and mixed now or which may hereafter be acquired by either of them; and
WHEREAS, The Husband is represented by XXXXXXXXXXX and the Wife is represented by XXXXXXXXXXX and both parties have participated in the drafting of this instrument, and this instrument purports to be, and in fact is a written expression of the oral agreement heretofore entered into between the parties; and
WHEREAS, each party has made full disclosure to the other of all property owned by each of them and of the income derived therefore and from all sources, and are fully advised as to their rights in relations thereof; and
WHEREAS, the Husband reserves the right to prosecute his pending marital action and to defend any action which the Wife may commence, and the Wife may commence and reserves the right to prosecute any action for divorce she may deem necessary or defend any marital action initiated by the Husband.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein made and other good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties hereto freely and voluntarily agree as follows:
The Wife acknowledges that: she is employed by XXXXXXXXXXX her income, the property that she will receive pursuant to this Agreement, and the income generated therefrom, are fully adequate to provide for her own support, and she therefore does not require any alimony, maintenance, or support from the Husband. Therefore, Wife agrees to and shall be forever barred, terminated and foreclosed from claiming maintenance (heretofore called alimony) from Husband, whether past, present or future, having waived her right to maintenance and any and all claims for dower, inheritance and other property rights she now either has or may have as a product of this marriage, by signing this agreement and she shall not be allowed to seek same from Husband in the XXXXXXXXXXXXXXXXXX or any court in the future. The provisions of this paragraph shall not be subject to modification in any respect whatsoever.
The Husband acknowledges that: he is employed by XXXXXXXXXXXXXXXXX his income, the property that he will receive pursuant to this Agreement, and the income generated therefrom, are fully adequate to provide for his own support, and he therefore does not require any alimony, maintenance, or support from the Wife. Therefore, Husband agrees to and shall be forever barred, terminated and foreclosed from claiming maintenance (heretofore called alimony) from Wife, whether past, present or future, having waived his right to maintenance and any and all claims for dower, inheritance and other property rights he now either has or may have as a product of this marriage, by signing this agreement and he shall not be allowed to seek same from Wife in the XXXXXXXXXXXXXXXXXX or any court in the future. The provisions of this paragraph shall not be subject to modification in any respect whatsoever.
II. ATTORNEYS FEES
Each party agrees to pay and be solely responsible for his or her own attorneys fees, expert fees and costs incurred in or related to this matrimonial litigation.
Each party shall be solely liable for the balance, if any, of their own respective said fees and costs and each party further agrees to and does hereby indemnify and hold free and harmless the other, his or her estate, heirs, executors, administrators, and personal representatives of and from any and all liability and expenses in connection with the fees and costs that each party has undertaken to pay pursuant to this Article.
Each party has been fully informed of their respective rights under Section 503(j) and Section XXXXXXX Marriage and Dissolution of Marriage Act to seek a contribution towards the attorneys fees from the other party and respective rights to a hearing for the final setting of the amount of attorney's fees, and notwithstanding, each party hereby freely and voluntarily waives his or her right to a hearing on the contribution to his or her attorney's fees, expert fees and costs by the other party, to which he or she would otherwise be entitled.
Note: Check with your attorney if signing off on something such as the above bars you from pursuing fees in future litigation. Also, note sometimes people have written that the prevailing party shall not be responsible for their fees - meaning something like whoever loses in future litigation will not only have to pay for their own legal fees, but also those of the party who won. Additionally, it can be easier to get legal fees during the initial decree/judgment process than post-decree.
III. CUSTODY, CHILD SUPPORT AND EDUCATION
Note: This is where my MSA is so awful. It doesn't at all scale based on income and needs as our son grows. It doesn't mention any future costs. It doesn't mention how litigation would be handled. It doesn't dictate what the financial contribution split should be.
The parties hereby acknowledge that they shall have joint custody of the minor child XXXXXXXXXX age 3 years, born on XXXXXXXXXXXXXXXXXXXX, with the Wife being the primary physical custodian as outlined in the Joint Custody Agreement incorporated herein.
The Husband shall pay as and for support of the minor child the sum of $500.00 per month.
I made a total bad - basing child support on unemployment and also not scaling up. There should have been some statement that the $500 amount was based on unemployment and temporary and that some other higher amount would have been accurate reflecting employment. Additionally, there should have been a system in place that we would periodically check on Mr. X's income, beyond just him having to submit tax returns to me annually.
The Husband shall pay his child support obligation pursuant to a Uniform Order For Support.
The parties shall exchange copies of their Federal and State Income Tax returns for the prior year, each year by May 15 or within two weeks of filing same.
IV. EMANCIPATION EVENT
Pursuant to Section 510(d) of the XXXXXXX Marriage and Dissolution of Marriage Act, and with respect tot he minor child, an 'emancipation event' shall occur or be deemed to have occurred upon the earliest to happen of any of the following, at which time the Husband's obligation to provide for the child as detailed in this Agreement, excepting those obligations provided by Article V and Article VI shall terminate;
A. The child's death;
B. The child's marriage;
C. The child having a permanent residence away from the Mother. A residence at boarding school or camp is not deemed to be a residence away from the permanent address;
D. The child reaching the age of 19 or graduation from high school, whichever sooner occurs;
E. The entry into the armed forces of the United Sates; the emancipation event shall be deemed terminated and nullified upon discharge from such armed forces and thereafter if child would not otherwise be emancipated;
F. The child's engaging in full-time employment, except employment during vacation or summer periods shall not be deemed an emancipation event.
V. MEDICAL CARE FOR DEPENDENT CHILD
It is understood that no medical private insurance policy is available to provide medical coverage for the child and that he is currently covered by the XXXXXXXXXXXXXX program.
Should the Husband obtain employment that provides for health insurance for the minor child, he shall enroll the child in such a policy at the earliest possible date. The Husband's obligation with respect to maintaining the child under any medical insurance policy shall terminate upon the child attaining the age of 23 years or completing their college or trade school education whichever shall first occur, providing the child is a full-time student.
The parties shall promptly submit all covered ordinary or extraordinary expenses, hereunder to the appropriate insurance carrier for payment and if a party so requests, the other shall provide such proof of compliance as may be requested.
If insurance coverage should become available, the party obtaining such coverage shall provide the other with a current identification card or such other proof of coverage as may be necessary to allow the child reasonable access to and use of the insurance coverage.
The parties shall equally pay and be responsible for the medical, dental, and optical expenses for the child; to the extent such costs are not otherwise paid by a policy of insurance.
VI. LIFE INSURANCE
The Husband agrees to maintain an insurance policy on his life in the amount of at least One Hundred Thousand ($100,000.00) Dollars naming the minor child as irrevocable beneficiary and Wife as trustee for the benefit of the minor child.
The Husband agrees to provide Wife, from time to time, but in no event less than annually every year on January 1, with proof of the existence of the required life insurance coverage, together with current payment of all premiums due upon the policy. The Husband represents and warrants that he will cause no loans, liens or encumbrances of any kind to diminish the value of the life insurance coverage and further agrees that he will not borrow against, pledge, hypothecate or convert to the cash surrender value, if any or otherwise impair the value of the required life insurance coverage, until this obligation hereunder ceases. If the minor child does not attend college then the Husband's obligation under this provision shall cease when the child reaches age nineteen (19). If the minor child attends college then the Husband's obligation under this provision shall cease when the child reaches age twenty-three (23).
Note: Mr. X has never upheld his insurance obligation.
VII. COLLEGE EDUCATION
Both parties agree to contribute to the college education and/or vocational or trade school expenses of the minor child in accordance with the abilities, aptitude and desires of the minor child and their own economic ability. The extent of the parties' respective obligations hereunder shall be determined in accordance with Section 513 of the XXXXXXXX Marriage and Dissolution of Marriage Act or such other statue in force at the time in question.
Note: I'm very unhappy with the phrasing "according to their own economic ability." This gives Mr. X a very convenient out by crying 'poor,' which he is so good at. College tuition will be a fight. Also note that there are state rules as to what is the maximum college tuition cost. For example, in my state the maximum amount of annual tuition that can be 'forced' on parents is the cost of the state school, which for us is $28,000. This means that if parents are fighting over another school that is say, $60,000, the maximum the court can order the parent(s) to pay is a total of $28,000, the cost of the state school. Look up your state rules and/or speak with your attorney.
VIII. MARITAL DEBTS
The parties agree that each of them shall be solely responsible for any debts, liabilities and obligations of any kind or nature whatsoever, incurred by him or her after the date of separation, being January 1, 2006, and they shall pay and shall have and hold each other free, harmless and indemnified against all debts, liabilities and obligations which were incurred by them for necessaries or otherwise for themselves since they separated on that date. The parties acknowledge and agree that there is no marital debt to be divided or allocated between then and that any debt incurred prior to the date of separation is in each of their individual names. Husband and Wife shall each be responsible for said debt.
Except as otherwise herein provided, each party agrees to pay, or otherwise be solely responsible for, the debts, obligations, tax liabilities and bills with third parties that he or she has incurred or hereafter incurs (including also obligations regardless by whom incurred associated with assets received by each party pursuant to this Agreement) and each party agrees to and does hereby keep the other, his or her legal heirs, personal representatives, and assignees, free and harmless and indemnified of and from any liability for that which he or she has agreed to pay, or otherwise be solely responsible for pursuant to this Article.
IX. DIVISION OF MARITAL PROPERTY
The parties acknowledge that they are the owners of various marital properties, real, personal and mixed and are desirous of making an equal division thereof, with consideration paid to the appropriateness of the respective assets for the use of either party, and in consideration thereof, hereby agree:
1. The parties acknowledge that the personal property, including household furniture and furnishings, and effects has been amicably divided.
2. That the Husband and Wife waive and release any and all rights they each may have henceforth to any 401(k), pension, retirement funds, etc., in connection with their employment.
3. The Wife shall keep as her sole and separate property any motor vehicle that she currently owns and any other personal property now in her possession, and shall hold the Husband harmless from any liability or indebtedness related thereto.
4. The Husband shall keep as his sole and separate property any motor vehicle that he currently owns and any other personal property now in his possession, and shall hold the Wife harmless from any liability or indebtedness related thereto.
X. MAIDEN NAME
The Wife shall have the right to resume her maiden name of XXXXXXXXXX if she should so desire.
XI. INCOME TAX RETURNS
Wife shall be entitled to claim the minor child, XXXXXXXXX as a dependency exemption on her Federal and State Income Tax Return for all future years. Husband agrees and shall execute any and all documents necessary to effectuate the terms of this Agreement including IRS Form 8332. Husband may seek a modification of this provision upon the appropriate showing of a substantial change in circumstances after filing the appropriate pleading and hearing on the same.
XII. AMENDMENTS TO MARITAL SETTLEMENT AGREEMENT CONSTRUCTION AND EXECUTION OF DOCUMENTS
This agreement may be amended by mutual agreement of the parties anytime hereafter. Any such amendments shall be reduced to writing, dated and signed by both of the parties and shall specifically provide that it is intended to alter or amend this Agreement.
Each of the parties agrees that he or she will, upon demand by the other at any time hereafter, execute any and all instruments and documents as may be reasonably necessary to transfer, convey, and release their respective interests in any property belonging to the other, the intention being that the settlement provided for in this Agreement shall constitute a complete adjustment of the property rights and all other rights of the parties hereto.
XIII. MUTUAL RELEASES
Except as otherwise herein provided, each of the parties does forever waive, release and quitclaim to the other party all rights of dower, homestead, and all other property rights and claims which he or she now has or may hereafter have as husband, wife, widow, widower, or otherwise by reason of the marital relationship now existing between the parties hereto under any present or future law or any state or of the United States of America, or of any other country, in or to or against the property of the other party. Each of the parties hereto further covenants and agrees for himself or herself and his or her heirs, executors, administrators or assigns that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any, all, or any part of the rights specified in and relinquished under this Marital Settlement Agreement, specifically excluding therefrom any rights Wife or Husband may have to enforce the unexecuted provisions of this Agreement against Husband's or Wife's estate in connection with the obtainment of complete satisfaction of Husbands obligation towards Wife, or Wife’s obligation towards Husband.
XIIII. WAIVER OF ESTATE CLAIM
Each of the parties hereby waives and relinquishes all right to act as Administrator with the will annexed of the estate of the other and each of the parties hereto does further relinquish all right to inherit by intestate succession any of the property of which the other party may die seized or possessed. Should either of the parties hereto die intestate this Agreement shall operate as a relinquishment of all right of the surviving party hereafter to apply for letters of administration in any form; and the estate of such deceased party, if he o she dies intestate shall descent to the heirs at law of such deceased party, in the same manner as thought the parties hereto had never been married, each of the parties hereto respectively reserving the right to dispose, by treatment or otherwise, of his or her respective property in any way he or she may see fit without restriction or limitation, whatsoever, except as otherwise provided herein.
XV. SURVIVAL OF AGREEMENT AFTER JUDGEMENT
In the event the Court sees fit to award either party a Judgment For Dissolution of Marriage upon the evidence presented in the pending marital action, then it is agreed that this Agreement shall be submitted to the Court for its approval, and if approved, shall be adopted as part of the Judgment For Dissolution of Marriage from the other, or in the event that the Court shall fail or refuse to approve this Agreement as executed by the parties or hereafter amended, then this Agreement shall be null and void. Any judgment entered herein shall provide in specific terms that this Agreement shall be merged with such judgment.
Nothing herein shall henceforth be construed to deprive the Court of its inherent power to henceforth set appropriate orders respecting the minor child of the parties upon a proper showing of a material change of circumstances.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seal the day and date first written.
Other Examples and Samples:
This sample Marital Settlement Agreement is pretty thorough. I wish I'd found it while I was in my initial divorce process - at the very least it would have given me some idea as to what could have been added to make mine more robust.