Verified by 
Key points
- A marital settlement agreement involves resolving three main legal issues.
- These issues are how assets and debts will be divided, how parenting time will be shared, and how income will be shared.
- Complex marital estates may involve a more challenging information-gathering process.
Evan, a new client, tells me that he plans to separate from his wife. He asks for referrals to family law attorneys. Although he and his wife have been unhappy for a long time, he believes that his decision will be a shock to his wife of 20+ years. He tells me that he has three teenage children and that he believes he and his wife will be good parents together.
I spend most of the hour asking him questions to see if his decision is clear and firm. We then talk about the process of divorce, and how to talk to his wife and children about his decision. Finally, we talk about how to avoid a high-conflict divorce by choosing an out-of-court process.
I tell him, “Divorce is 95% emotional and only 5% legal.” He asks me to explain, saying, “I get that it is emotional, but isn’t the legal part the important part?”
In many other posts in this blog, I have addressed the emotions and how to cope, heal, take care of yourself, and recover. But what is that 5%?
These are the three main legal issues to be resolved in your marital settlement agreement (MSA).
They are:
1. How you will divide your assets and debts. Divorce laws vary from state to state, so consultation with an attorney would be important, even if you plan to do the divorce yourself. It is important that you and your spouse understand the laws regarding property, bank accounts, life insurance, and other assets, as well as debts, such as school loans, a mortgage, or credit card debt. While all states have a form of no-fault divorce, state laws may vary when it comes to the division of assets. Laws regarding what is considered Community Property or Separate Property may also vary in different jurisdictions.
2. How you will share parenting time. Unless there is something that deprives a parent of his or her rights (e.g., a parent is in prison), parents have the same parental rights. This means that joint legal custody is the norm. So neither parent can make unilateral decisions regarding the children, such as moving far away. Physical custody is generally shared because the research is clear that children need to have strong relationships with both parents. The schedule of parenting time needs to be developed in a way that meets your children’s developmental needs, as well as your work schedules or other commitments.
A realistic schedule may not work out to exactly “50-50” but if it meets your circumstances and your children’s needs, it will be the right schedule. And it may change from time to time, as your children grow, or your circumstances change. Aside from a schedule, it is wise to have a detailed parenting plan that covers many other issues, such as travel, education, health, new relationships, and more. There are some examples on the internet, and a divorce coach can help you develop an agreement.
3. How income will be shared for child support and spousal support. Again the laws regarding alimony vary. Alimony (also called spousal support) and child support are not designed to punish a spouse. They are meant to support the non-working or lower-income spouse so that the children’s needs are met, and they have somewhat consistent living experiences at each parent’s home. Many states have a state formula for determining child support, but if you are in an out-of-court process you may negotiate something different from the state formula. In many jurisdictions, the non-working spouse is expected to contribute to their own support, although there is usually room for re-training or job searches. Most states don’t have a formula for determining alimony or spousal support, so the many factors a judge must consider make for unpredictable outcomes.
It is important that you understand the laws in your jurisdiction regarding these three issues so that you know what your rights or entitlements are. But, in mediation or a Collaborative Divorce, you can make agreements outside of the law. It’s important that your decisions are informed, even if you make agreements that are different from what the law says. This gives you much more control over the outcome than you would have if a judge made those decisions for you.
Resolving these three essential issues involves collecting a lot of information.
The more complex your “marital estate,” the more challenging this information gathering can be. A neutral financial specialist, such as a Certified Divorce Financial Analyst (CDFA), can help you gather all of the information for you and your spouse. This is much less expensive than having your two attorneys gather it all. The CDFA can also prepare the disclosure documents that are required in most states.
Collecting all of this information can be a burdensome chore when you are dealing with all the emotions of the divorce. Furthermore, discussion of these three topics usually triggers a lot of emotion.
For this reason, I usually recommend that divorcing partners take the time to work through their emotions before starting the legal process. Working with a trained Divorce Coach can help you manage your emotions and navigate the legal process too.
Evan takes careful notes during our meeting and asks many questions himself. He says, “I want to make sure my wife and kids are secure and stable, but I want to be secure too. I will need some help figuring this all out.” As the meeting ends I offer him referrals to mediators and collaborative attorneys, as well as to a CDFA and divorce coach. Recently he let me know that he and his wife are working together with their collaborative lawyers to resolve all of their legal issues and even some of the emotional issues.
© Ann Gold Buscho, Ph.D. 2022
