Marital Settlement Agreement in California Divorce

A Marital Settlement Agreement (MSA) in California is a legal document used to outline the terms and conditions agreed upon by both spouses in a divorce or legal separation. This agreement covers key issues like property division, child custody, child support, and spousal support. The goal of an MSA is to resolve all issues without the need for court intervention, making the divorce process quicker and less costly.

Here is a breakdown of the typical contents of a Marital Settlement Agreement in California:

1. Introduction

  • Names and Background Information: The agreement will begin by identifying both spouses and providing basic details about the divorce or legal separation. This includes:
    • Names of the parties (husband and wife)
    • Case number
    • Date of marriage and date of separation
    • Jurisdiction (the county and state in which the divorce is filed)

2. Division of Property (Community and Separate)

  • Community Property Division: California is a community property state, which means that any property or assets acquired during the marriage are generally divided equally (50/50) between the spouses. The MSA should detail:
    • Real Property: Homes, land, or other real estate owned by the couple, specifying which spouse will retain ownership.
    • Personal Property: Items such as vehicles, furniture, jewelry, and other tangible personal property, along with who will keep which items.
    • Bank Accounts and Investments: Details of the division of any joint or separate bank accounts, retirement accounts (e.g., 401(k), pension), investment portfolios, and stock options.
    • Debts: How any community debts (e.g., credit card balances, mortgages) or separate debts (incurred before or after separation) will be divided between the spouses.
  • Separate Property: Assets acquired by one spouse before the marriage or after separation are considered separate property and generally stay with the spouse who owns them. The MSA should identify and distinguish separate property from community property.

3. Spousal Support (Alimony)

  • Temporary Spousal Support: If applicable, the agreement should detail the amount and duration of any temporary spousal support during the divorce proceedings.
  • Permanent Spousal Support: The MSA should address whether spousal support will be paid after the divorce is finalized, how much will be paid, and for how long. Factors that influence spousal support include:
    • Length of the marriage
    • The standard of living during the marriage
    • Each spouse’s ability to support themselves financially
    • The recipient spouse’s needs and ability to work
  • Termination of Spousal Support: The agreement should specify under what conditions spousal support will end (e.g., upon remarriage or cohabitation of the receiving spouse).

4. Child Custody and Visitation

  • Legal Custody: The MSA should define whether legal custody will be shared (joint legal custody) or given to one parent (sole legal custody). Legal custody refers to the right to make major decisions for the child, such as regarding education, healthcare, and religious upbringing.
  • Physical Custody: The MSA should also outline the physical custody arrangement, specifying which parent the child will live with and the visitation schedule. This may include:
    • Joint physical custody: The child lives with both parents for significant periods.
    • Sole physical custody: The child resides primarily with one parent, with the other parent having visitation rights.
  • Visitation Schedule: The MSA should include a detailed visitation schedule, which may include weekends, holidays, vacations, and special occasions.
  • Decision-Making: Who will make day-to-day decisions for the child (e.g., discipline, school activities) and major decisions (e.g., medical treatment, school choices).

5. Child Support

  • Amount of Child Support: California uses a state-specific formula to calculate child support based on factors like:
    • Both parents’ incomes
    • The amount of time the child spends with each parent
    • Healthcare and childcare costs
  • Health Insurance: The MSA should specify which parent will provide health insurance for the child or if the costs will be shared.
  • Additional Expenses: The agreement should address other expenses related to the child, such as:
    • Medical expenses not covered by insurance
    • Extracurricular activities (sports, music lessons)
    • Educational costs (private school tuition, tutoring)

6. Division of Retirement Accounts and Pensions

  • Qualified Domestic Relations Order (QDRO): If either spouse has a pension, 401(k), or other retirement accounts, the MSA will include provisions for a QDRO to divide those assets. This is required to divide retirement benefits earned during the marriage.

7. Taxes

  • Tax Filing Status: The MSA may address how taxes will be handled in the year of the divorce, including whether the spouses will file jointly or separately. It may also specify who will claim the children as dependents for tax purposes.
  • Tax Deductions: It may specify who will claim tax deductions such as mortgage interest or child tax credits.

8. Debt Responsibility

  • Who Will Be Responsible for Debts: The MSA should clearly specify which spouse is responsible for any outstanding debts, including credit cards, loans, or other financial obligations, and how these debts will be handled.
  • Indemnification Clause: The MSA may contain provisions where one spouse agrees to indemnify (hold harmless) the other from future claims or obligations related to these debts.

9. Waiver of Rights

  • Waiver of Future Claims: In most cases, the MSA includes a provision where both spouses waive any future claims against each other regarding financial matters, provided the terms of the agreement are met.
  • Rights to Inheritance: In some cases, the agreement may include clauses regarding the division of assets in the event of the death of either party.

10. Enforcement and Modification

  • Enforcement: The MSA will include provisions detailing how either party can enforce the terms of the agreement, including the possibility of going back to court if the terms are violated (e.g., failure to pay child support or spousal support).
  • Modification: If circumstances change, such as a significant change in income or living arrangements, the agreement may provide a process for modifying certain provisions like child support or spousal support.

11. Miscellaneous Provisions

  • Dispute Resolution: The MSA may include provisions for resolving disputes, including mediation or arbitration, instead of litigation.
  • Confidentiality: Some agreements include confidentiality clauses to protect both parties’ privacy regarding the divorce terms.
  • Final Agreement: A statement confirming that both parties fully understand the terms, have had legal counsel (or waived the right to counsel), and that the agreement represents their complete and final understanding.

12. Signatures and Notarization

  • Signatures: The agreement must be signed by both spouses to indicate their agreement to its terms. If one spouse is represented by an attorney, the attorney may also sign the document.
  • Notarization: Although notarization is not always required for a marital settlement agreement, it is often a good idea to have the agreement notarized to add an extra layer of authenticity and enforceability.

Conclusion

The Marital Settlement Agreement (MSA) is a crucial document in California divorce proceedings, as it sets the terms for the division of property, child custody, child support, spousal support, and other important matters. By addressing these key issues comprehensively and clearly, the MSA helps ensure that the divorce is finalized in a fair and orderly manner. Having an experienced family law attorney draft or review the MSA can help ensure that your interests are protected and that the agreement complies with California law.