One of the primary responsibilities of a good divorce attorney is to attempt to settle the major issues in a divorce case prior to trial. If this can be accomplished, both sides will save on attorney fees, and there will be more marital assets remaining for division among the parties. If the parties are unable to resolve all of the major issues in their divorce, the outstanding issues will be resolved through a trial, and the judge will issue an order of dissolution setting forth his or her 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:
(1) the court may modify any provisions relating to child support, child custody, and visitation, based on the best interests of the children involved; and
(2) the court will not enter the agreement as an order if it is "unconscionable."
A marital settlement agreement will be held to be unconscionable if either:
(1) it is unreasonably unfair to one party; or
(2) the agreement was made under conditions under which one party did not have a meaningful choice.
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 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.
It is important that the terms of the Marital Settlement Agreement be explicitly stated in the order of dissolution, not merely incorporated into the order by reference. If the terms of the MSA are explicitly set forth 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.
Contact Will County & DuPage Divorce Attorney Kevin O'Flaherty
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