It's a safe bet to say that in over 90% of divorce cases, the spouses reach a settlement at some point before going to trial. And thank goodness for that, because if they didn't, a lot more people would be waiting years before their divorce was final. Some couples resolve their differences before they even file for divorce. Others settle while the divorce is in progress. But regardless of the timing, virtually all of these cases have one thing in common—the preparation and signing of a written marital settlement agreement.
Depending on where you live or whom you talk to, you may hear different names for the settlement agreements that couples reach in divorces. Along with the most common—marital settlement agreement (MSA)—these other names include:
In the end, all these names mean the same thing: a written document that details how a couple has agreed to handle all of the issues that must be addressed when they get divorced, including:,
An MSA usually also has other provisions ("terms") that detail how the couple will handle possible future events. For instance, spouses might agree that they will at least try mediation if they have any disputes in the future.
You can get a divorce without an MSA—or any other agreement. All you need is a written divorce judgment signed by a judge.
If you've reached a settlement, your MSA will be made part of the divorce judgment. But if you haven't settled all of the issues in your divorce, you'll have to go to trial. After the trial, the judge will make decisions about the unresolved issues and will then sign a judgment that reflects those decisions.
In some cases, couples might choose to place an oral agreement on the record—by simply telling the judge what they've agreed to when they appear at the final hearing in their divorce. However, the vast majority of couples use a written MSA when they settle their divorce—and with good reason.
With oral agreements, it's not unusual for couples to hit only the main points of their settlement. For example, they may say that the children will live with Spouse A, while Spouse B will have parenting time every Wednesday evening and every other weekend. That's all well and good, but it doesn't specify what happens if Spouse B has to miss a scheduled parenting time for a legitimate reason. It's not clear whether Spouse B will be able to make up the missed day or weekend.
A carefully written MSA should go into detail about each part of the agreement, leaving as little as possible up to interpretation. Remember, circumstances and attitudes can change down the road, such as when an opinionated new spouse enters the picture. If something in the agreement becomes a bone of contention in the future, your unhappy ex might latch on to any unclear wording in the MSA—arguing that it means something different than what both of you originally intended. This opens the door to legal battles. Your ex might not prevail, but that's small consolation when you've had to spend time and money to fight it out in court.
A written MSA can also provide for specific sanctions when a spouse violates ("breaches," in legalese) the agreement's provisions—consequences that might not be standard under state law for enforcing divorce judgment, such as paying the other spouse's attorney's fees for enforcing the MSA in court (more on that below).
Although there's nothing to prevent spouses from drawing up their own MSA, it would almost always be a mistake to do that. Most lay people don't understand all of the legal implications of what they might be agreeing to, nor are they likely to be aware of other helpful provisions that the agreement could include.
So when the spouses have lawyers and reach an agreement through their attorneys, one of their lawyers typically prepares a draft of the MSA. After that, the other spouse's lawyer reviews it and suggests changes if needed.
When couples reach an agreement in mediation before filing for divorce, the mediators will often prepare the written agreement. Whether they're lawyers or not, mediators usually recommend that the spouses have separate attorneys review the proposed agreement, to ensure that each spouse has had independent counsel and that they fully understand the legal consequences of signing the MSA. (It's worth noting, however, that couples who've signed an MSA before filing for divorce can usually complete an uncontested divorce without having to hire attorneys to represent them in the case.)
You should know, by the way, that judges won't ever get involved with preparing MSAs. A judge's role is limited to reviewing the agreement, approving it (or having the spouses make changes if, for example, the agreement doesn't appear to be in the children's best interests), and making the MSA part of the final divorce judgment.
Once an MSA is included in the final divorce judgment, a judge may enforce it like any other court order. The same is true when couples reach partial or interim agreements on one or more issues—such as temporary child support while a divorce case is ongoing—and have a judge include those agreements in an order (often called a "consent order.")
If your ex violates the terms of your MSA and divorce judgment, you'll usually need to file a request with the court to enforce the order. There are different enforcement methods, depending on the laws in your state and the type of provision involved. For example:
It's worth pointing out that not every violation of an MSA and divorce judgment has to end up in court. Sometimes, a strongly worded letter from an attorney might be enough to convince your ex to obey the terms of your agreement.
Spouses may agree to change (modify) an existing agreement, even when it's part of the divorce judgment. In fact, most MSAs address this possibility. Just be aware that you might have to get a judge's court approval of the proposed modification.
If spouses can't agree on a change that one of them wants, states provide guidelines for modifying settlement agreements, either in their statutes or in law that's been established through court decisions. Judges will almost never allow a modification unless there's been a significant change in circumstances since the original agreement. For example:
The important thing to remember is that a court will base its modification decision on the particular facts of each case.