The Marital Settlement Agreement Defined
A marital settlement agreement is a written contract voluntarily entered by spouses to settle and determine issues of their marriage. The primary definition of a marital settlement agreement is that it is their agreement. No one was required to enter into the agreement. Each spouse can seek independent counsel and representation by a family law attorney to draft the marital settlement agreement, but that isn’t always done, and in some cases it is a family law attorney and/or the judge who actually drafts the marital settlement agreement because it is a standard form agreement.
By entering into a marital settlement agreement, the parties have a written record of their intent as to contended issues that might otherwise be costly and difficult to prove in court at trial with regard to the division of property (referred to as equitable distribution or equitable division), child custody, parenting time (also referred to as child visitation), child support, medical support, daycare and child care expenses for children that need supervision, spousal support (formerly known as alimony), and attorney’s fees and costs, if any, to be paid by either spouse as a result of the agreement. It may also include tax filing status issues and/or other issues that may be important to the parties.
A marital settlement agreement may also include and append a child support addendum, stating what the parties agree will be the amount of child support to be paid by one spouse to the other spouse or setting forth the details of what you agree will be child support. It may also include what you and your spouse agreed makes up a child support deviation. However, this is not always required. Child support deviations are when the amount of child support is higher or lower than the amount of child support that would be paid pursuant to the Child Support Guidelines and child support guideline formula . Examples of circumstances that might result in a child support deviation include such things as considerable unreimbursed out-of-pocket medical expenses, a parent’s extraordinary work-related business or education expenses, or other significant or extraordinary or special circumstances and expenses. Child support deviations are not typically defined in the Child Support Guidelines, so you want to provide the basis and details for any child support deviation. If you and your spouse have a child support addendum and it sets forth the child support that you have agreed to pay and/or the basis for a child support deviation, this might help settle issues of child support if and when people review these records so they may find a support agreement so that when child support modifications or enforcement actions occur, then it will be clear what you and your spouse agreed to do for child support purposes and you have some evidence you can use in court.
Although marital settlement agreements are often entered into during the divorce process, they can be entered into before the divorce process, after the parties have separated, and are no longer living together, as well. They can also be entered into after a divorce has already been finalized, if and when the parties agree to modify what was originally agreed to in the original marital settlement agreement and made part of the original final judgment of divorce. For example, there was a time when post-judgment motions to reduce or eliminate a party’s alimony obligation were granted by the family law courts without the requirement of a marital settlement agreement and changed final judgment of divorce. However, family law courts have held that a marital settlement agreement is required, although this is not an absolute requirement.
A marital settlement agreement may also be referred to as a separation, collaboration, or property settlement agreement.
What a Divorce Decree Is
A divorce decree is the document that the court signs at the end of the case that officially ends your marriage. In addition to setting forth all of the terms of your marital settlement agreement, a divorce decree generally will include the following terms: You signed a marital settlement agreement during the divorce process which contained many of the same provisions described above. However, the execution of the settlement agreement, while binding on you and your spouse, does not have the legal significance of a divorce decree. The divorce decree is the final order by the court terminating the marriage.
The Distinction between the Two Agreements
A marital settlement agreement serves a different purpose than a divorce decree. A marital settlement agreement is a standalone contract signed by both parties prior to signing a divorce decree. It states how a couple will handle issues ranging from child support and alimony to property division. While it is part of the divorce process, it stands separately and is part of the negotiations surrounding the divorce.
A divorce decree is an order signed by a judge after reviewing the terms in the marital settlement agreement signed by both parties. While the divorce decree legally dissolves the marriage, it also incorporates the terms of the marital settlement agreement entered into by the parties. The judge incorporates those terms into a divorce decree signed by the parties; the divorce decree states the couple’s intentions for alimony, child support, custody and parenting time, and property division.
The Use of these Documents in Divorce Cases
In a divorce, the marital settlement agreement provides a resolution for various matters without the need for court approval. As long as both parties agree to the terms and it does not violate any laws, the agreement can be used to address issues including: property division, child support, spousal maintenance, parenting time and child custody.
Once the agreement is reached, it is signed by both individuals. In some situations, it may even need to be notarized. After that, it must be filed with the court, which then reviews whether the agreement follows the law. Once approved, it becomes legally binding.
Unlike the marital settlement agreement, the divorce decree is a court order. It is signed by the divorcing couple and the judge overseeing the divorce proceeding. The judge approves the divorce decree, confirming that it is consistent with the relevant laws and legal precedents.
Because the divorce decree is a court order , it gives the authority for the courts to enforce its terms. Unlike the marital settlement agreement, the decree addresses issues for the parties with a legally enforceable order.
Some issues addressed in the divorce decree may not be required in the use of the marital settlement agreement. For example, the divorce decree will include:
While the divorce decree has the authority of a court order, the marital settlement agreement really is a contract between the parties. As a contract, it is important to remember that if violations occur, it may be necessary to go back to the court to enforce the terms of the agreement.
As soon as the judge signs and issues the divorce decree, even if you have a marital settlement agreement, it is best to assume that all terms of the divorce decree are incorporated into the agreement. Also, you can no longer modify the divorce decree. Changes can only be worked out in extraordinary situations or if the terms allow for modification.
Enforcing Each Document and Modifying
Enforcement and Modification of Each Document
Marital settlement agreements can also be enforced, through contempt proceedings or the request for specific performance. A marital settlement agreement does not need to be incorporated into a judgment in order to remain enforceable. However, after a marital settlement agreement has been incorporated into the judgment, the non-compliance then becomes the violation of court order and is measured as such. Even if the parties agreed to a change of the order to be made, if it is not made with the court, then the violating party will be subject to contempt proceedings. One caveat, is — If a marital settlement agreement is incorporated into a judgment, but the stipulation provides that the terms of the agreement remains binding on the parties until it is modified by the court, the filing of a motion to modify or set aside the judgment gives the court the inherent authority to reopen a judgment based on changed circumstances. In re marriage of Celebrezze (1998) 88 CA4th 102. However, the parties must comply with the local rule and make their entries and motions brought within an 18 month time period in order to be allowed to reopen a judgment. Now, it can be stated for both marital settlement agreements and divorce decrees, that the court does not have the inherent authority to reopen a judgment five years later without the consent of the parties and for good cause shown. In spite of the increase of modification of marital settlement agreements, under Family code law, there are no restrictions on the modification of divorce decrees. As with divorce decrees, marital settlement agreements are subject to modification when a showing of material change of circumstance exists that renders an order to be no longer in the best interest of the child and without the benefit of further proceedings, the welfare of the child may be unreasonably affected. Although, there is a rebuttable presumption that the previous judgment shall be terminated or modified, if the parties show adoption or implementation of a voluntary, written agreement of the parties that it would be in the best interest of the child to terminate or modify a prior judgment. A motion to terminate or modify may be brought at any time after a final decree. There is no limitation period. The court has jurisdiction to modify any previous support order, although a final judgment establishes some degree of finality, however subject to judicial review. In re Marriage of McEmory, 137 Cal App3d 614 (1982). There are other restrictions to bringing a modification motion, but those are beyond the scope of this information.
Myths
There are many common misconceptions regarding marital settlement agreements and divorce decrees. People erroneously believe that the Agreement is unnecessary because the Judge’s signature on the Decree makes it a final Order. In fact, the Decree and the Agreement are not the same document. The Marital Settlement Agreement sets the terms of the parties’ divorce. The Decree is simply the Court’s entry of the terms. In New Jersey, only the Agreement requires notarization.
In addition, once the parties’ divorce is final, the terms of the Agreement are enforceable via contempt motion in the event one party refuses to live up to his/her obligations . In certain circumstances, the terms of the Agreement can be modified.
Another misconception is that once the parties are divorced, the spousal support obligation terminates. Although there is an automatic termination date built into the Agreement, it can be extended if one party lacks the financial means to continue his/her obligation. The Judge may take into consideration length of the marriage, health concerns and other reasons during the pendency of the divorce and afterwards which may add time to the support obligation.
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