A marital settlement agreement, or MSA, allows two parties who are divorcing to craft a mutually beneficial contract to end their marriage. Courts in California and elsewhere favor settlement over litigation for a number of important reasons. Litigation can be emotionally draining, time-consuming and expensive. Settlements empower the parties to work out the terms of their divorce, instead of being bound by the decision of the court. For example, the community property statutes in California favor a 50-50 split of marital assets, but an MSA can alter that formula if the parties want a different division.
Content of an MSA
Every aspect of your divorce must be spelled out clearly in an MSA. Once the MSA is approved by the court it is final and any gray areas in the agreement could require further legal action in the future. Contents in a typical MSA include factual information about the marriage, identity of marital and non-marital property, provision for payment of any debts, child custody and support, attorneys fees, and tax considerations. It's important to ask the court to incorporate the MSA into the divorce decree. By doing so, any violation of the MSA by your former spouse enables you to file a contempt charge against him.
You are allowed to prepare your own MSA agreement with your soon-to-be ex-spouse and file the appropriate paperwork with the family court. Forms can be obtained from a third-party legal document provider. This can save you a considerable amount of money, especially if you and your spouse are in complete agreement on all aspects of your divorce settlement. If there are contested issues, or you are representing yourself and your spouse is represented by an attorney, it might be wise to seek independent legal advice before you sign an MSA.
California statutes require the parties to a divorce to disclose all marital and non-marital property to the other party. If you have cash stashed away in a Swiss bank account or under a mattress, you must disclose it. Preliminary disclosure is mandatory and cannot be waived by the other party or the court. However, you are free to divide your property in any way you agree upon in your MSA.
Child Custody and Support
Even though California courts favor MSAs, there are limits on your freedom to enter into such an agreement. MSAs cannot waive a child support obligation or override the court's jurisdiction to award child support. Similarly, the court can override custody arrangements involving minor children of the marriage. Based on prior court decisions, an MSA that prescribes a child's religious upbringing is probably unenforceable in California.