Ordinarily you execute an MSA before you file your divorce papers, normally at the time that you separate. This allows you to negotiate and execute your MSA and then to file for your divorce as soon as any required waiting period(s) has/have been completed.
A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce - even while you and your spouse are still living together.
If you have no marital property, no joint debts, and no children, you probably don't need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Separation Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.
When you initially execute your Marital Separation agreement you do not have to file the Agreement with the Court to be effective. When you begin the divorce proceedings you will, in most jurisdictions, attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court's contempt powers. If you don't incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.
Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case - the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories - (1) Consent Divorces - the parties agree on all major issues; and (2) Default causes - where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.
A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.
In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.
In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.
In an "equitable distribution" state the court "equitably divides" the marital property. The court normally considers the length of the marriage, age, health, conduct of the parties, occupation, skills and employment of the parties. Equitable division does not mean equal division and seldom is property equally divided. The court will order an approximately equal division of the assets and liabilities when:
The court will award more property (and fewer debts) to the spouse who has:
In an "equitable distribution" state, all property acquired during the marriage is "marital property" and all property owned before the marriage is "non-marital" property. Gifts or inheritances to either spouse during the marriage is non-marital property.
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