Enforcing Marital Settlement Agreements

A Marital Settlement Agreement (MSA) is a legal document that spells out the terms of a divorce and provides a framework for the relationship between former spouses after divorce. In New Jersey for example, MSAs are also sometimes called Property Settlement Agreements (a somewhat antiquated term that is now disfavored). While many couples have only marital property and debts to consider, many others, particularly those with minor children, need a more comprehensive agreement. Other times, the terms of an agreement are put in an “Order” or “Consent Order” that acts in the same manner laying out the rights and liabilities of each party.

Sometimes one party does not adhere to the terms of a MSA, Order, Consent Order, or Agreement, and defaults on his or her obligation. The non-defaulting party then is forced to “enforce” the terms of the agreement and/or Order that lays out the obligation.

It is important that one includes all terms and agreements made with your former spouse that you want a court to be able to enforce in your written MSA. Make the terms as specific as possible to prevent dispute or litigation in the future.

If you are getting along with your spouse, it can be tempting to leave some things out to be finalized later, but is not advisable as the times changes and parties feelings change both in the positive and the negative. A Court will not enforce any terms that you do not incorporate into your signed agreement. Your agreement should also include a method for negotiating any future disagreements and plan for all possible occurrences.

Once signed, the final MSA is binding between the parties. It is generally also incorporated into the final decree of divorce so that it becomes as enforceable as any other court order. It may also be merged or partially merged with the divorce decree, which affects enforceability under contract law.

An enforcement motion when brought will seek to enforce the terms as written and can be done usually if incorporated into a Judgemnt of Divorce by simply filing a “Notice of Motion” with the Court and a “Certification” explaining your position. Usually, these types of motions are disposed of after oral arguments and without a “hearing” or “testimony” of the parties.

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