One of the primary responsibilities of a reasonable divorce attorney is to attempt to settle the major issues in a divorce case before trial. If this can be accomplished, both sides will save on attorney fees, and more marital assets will remain for division among the parties. If the parties cannot resolve all of the significant issues in their divorce, the outstanding issues will be resolved through a trial, and the judge will issue an order of dissolution setting forth their rulings on these issues. The alternative to a trial is a Marital Settlement Agreement.
A Marital Settlement Agreement is a contract between the divorcing spouses that provides for the division of marital property and marital debt, child support, child custody, visitation rights, and maintenance payments. Once the agreement has been executed by both parties, the court will adopt the marital settlement agreement as its dissolution order in lieu of a trial, subject to two limitations:
If the court enters the Marital Settlement Agreement as a divorce judgment, either party can vacate the judgment by showing "clear and convincing evidence" that the agreement was unconscionable.
The parties can limit their own ability to seek a later modification of the MSA, even in the case of changed circumstances, if they explicitly state this limitation in the agreement. However, the parties cannot limit their ability to modify issues relating to children, such as child support, custody, or visitation rights.
The terms of the Marital Settlement Agreement must be explicitly stated in the order of dissolution, not merely incorporated into the order by reference. If the terms of the MSA are explicitly outlined in the order of dissolution, the terms can be enforced through a contempt proceeding in the divorce court. If the divorce decree simply references the terms of the MSA, then the terms are only enforceable through breach of contract proceedings.
Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
Kevin O'FlahertyKevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.
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