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Martial Settlement Agreements – How to work things out before filing for divorce March 27, 2008

Posted by margolinlegal in Alternative Dispute Resolution (ADR), Dissolution, Domestic Partners, Legal Separation, Property Division, settlement.
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I often have clients ask me how they can lock in an agreement with their spouse regarding how to divide up their assets in an impending divorce. Usually these clients have not yet filed for divorce. The answer is to execute a marital settlement agreement. Marital settlement agreements can also be used in the collaborative divorce process to formalize an agreement between spouses prior to finalizing their divorce.

A marital settlement agreement is a contractual agreement entered into by a husband and wife prior to their divorce. The settlement reached can be much more detailed and individualized than a judge’s ruling and can include provisions that a judge would not legally be allowed to include. The parties can work with their attorneys to make sure that their individual needs are accounted for while providing a fair division of the parties’ assets and debts.

A marital settlement agreement can also be used by parties who want to have a trial separation, but also be certain of how a divorce will proceed if they are unable to save their marriage. Clients will often want to file for a legal separation in order to preserve their rights while still being able to stay on the other spouse’s health insurance. Rather than going thorough that process, they can sign a marital settlement agreement and wait to file for divorce until the health insurance issue can be rectified.

A court is not required to approve the parties’ marital settlement agreement. A court will almost always approve the agreement provided that the agreement is fair and that both parties knew what they were agreeing to. In order for the parties to be as secure as possible that the agreement will be approved by the court they must disclose truthfully all of their financial information to the other spouse, must actually abide by the terms of the agreement during the time between signing the agreement and filing for divorce, and they must actually get divorced in a reasonable period of time. If, for instance, the parties wait many years to divorce, a court would be less likely to approve the agreement.

With the passage of the new domestic partnership legislation in Oregon, domestic partners may be able to use marital settlement agreements to formalize issues prior to dissolving their domestic partnership.

In conclusion, martial settlement agreements provide a great way for clients to divorce in an amicable and mutually beneficial manner.

Comments»

1. Andy Clark - June 16, 2008

Be really careful of the MSA. I got screwed really badly and the ex is now hauling me in for contempt. She has me paying about $8,000 per month and my income is about half or less what it was when this whole thing was set up. I am screwed…even hiring an attorney could be construed as ‘contempt’ it seems.

My advice: except for really simple cases involving no children or assets DON’T do an MSA. They are subject to manipulation by the dominant spouse. They are often negotiated when emotions are very strong. When people are getting “divorced” they often go through a period of extreme mental duress. This is NO TIME to be negotiating the future. That should be left to the Court when the right time comes.

2. Lori Sams - August 4, 2008

Amicable divorce is much more preferable for both you and the kids. I totally agree with the above. I used http://www.document-do-it-yourself-service.com. We got everything done before we even went to court. It was great.

3. BubbasStreet1 - August 7, 2008

An uncontested divorce is quite preferable. Not only does it make the process easier, it also means that you can perhaps get an online divorce, which would be cheaper. We did it through jointdivorce.com and saved money.

4. Harold - August 7, 2008

I completely agree that an uncontested divorce is best for everyone. I didn’t go through a Web site, but may be next time (if there is a next tiem) I will.

5. mistyeyed - August 15, 2008

I know that marital agreements beforehand is the best way to get a divorce. You have worked everything about beforehand and don’t have to worry about all the fighting and saying that this is mine or that is mine. Go amicably is what I say.

6. mistyeyed10 - August 22, 2008

I agree with Lori. Uncontested divorce is the best. For one things, you don’t need to drag your kids through in-fighting and other problems that come with divorce.

Plus, it does open up your options. If your not fighting over who gets what or who gets full custody of the kids, you can save money and time.

7. Jason - August 27, 2008

I agree that you should look to work things out beforehand. Nothing is hard than breaking up. My wife and I split up when I was in the military.

Not only was it rough in the military, but I had all this to deal with outside of it. An uncontested divorce would be much more preferable to what we wen through.

8. Barry - October 4, 2008

What an excellent post. How I could have used this before my divorce. Due to the lack of money, I had to do my own divorce, so a lot of this was missed.
Thank you for this information, I will pass it along to a friend of mine who is currently going through a divorce.

9. Barry - October 4, 2008

This is a great article. A divorce is hard enough and the emotions are so overwhelming, it makes you forget tons of things….things that could probably make the whole situation a lot easier. Great post.
I used an online service, no offense to the writer, I just could not afford a lawyer no matter what I tried…. went through document-do-it-yourself. It really made the whole situation a lot easier to deal with….
Maybe your friend can use this?
-J

10. Jason - October 4, 2008

This is a great article. A divorce is hard enough and the emotions are so overwhelming, it makes you forget tons of things….things that could probably make the whole situation a lot easier. Great post.
I used an online service, no offense to the writer, I just could not afford a lawyer no matter what I tried…. went through document-do-it-yourself. It really made the whole situation a lot easier to deal with….
Maybe your friend can use this?
-J


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