A Marital Settlement Agreement (MSA) is a legally binding contract between divorcing spouses that outlines the terms of their divorce, including property division, custody, support, and other matters. It is often incorporated into the final Judgment of Dissolution.

Legal Requirements for a Valid MSA in California

To be valid and enforceable under California law, a Marital Settlement Agreement must meet the following requirements:

  1. Voluntary Agreement
  • The MSA must be entered into voluntarily by both parties without duress, fraud, coercion, or undue influence.
  • See: Family Code § 721(b) (fiduciary duty between spouses) and § 2100–2106 (full financial disclosure).
  1. Full and Fair Disclosure
  • Each party must provide complete and accurate disclosure of all assets, debts, income, and expenses.
  • See: Family Code §§ 2103, 2104, 2105 (mandatory preliminary and final declarations of disclosure).
  1. Written Agreement
  • The MSA must be in writing and signed by both parties. Oral agreements are not enforceable.
  • See: Family Code § 2550 (equal division of community property unless otherwise agreed in writing).
  1. No Unconscionable Terms
  • The terms must be fair and reasonable. Courts can reject agreements that are grossly one-sided or violate public policy.
  1. Incorporated into the Judgment
  • The MSA is typically incorporated into and enforceable as part of the Judgment of Dissolution.
  • See: Family Code § 2336.
  1. Independent Counsel (Recommended)
  • While not required, having independent legal counsel helps ensure that both parties understand the agreement and that it is enforceable.

Most Common Issues Addressed in an MSA

A comprehensive MSA typically addresses the following issues:

  1. Division of Community and Separate Property
  • Assets (homes, vehicles, retirement accounts, businesses)
  • Debts (credit cards, loans, mortgages)
  • See: Family Code § 760 (community property presumption), § 770 (separate property).
  1. Spousal Support (Alimony)
  • Amount, duration, and conditions for modification or termination.
  • See: Family Code §§ 4320–4339.
  1. Child Custody and Visitation
  • Legal custody, physical custody, parenting time schedules.
  • See: Family Code §§ 3000–3105.
  1. Child Support
  • Based on California guidelines and parties’ income.
  • See: Family Code §§ 4050–4076.
  1. Tax Issues
  • Dependency exemptions, filing status, and tax obligations.
  1. Attorney’s Fees and Costs
  • Agreement on who will pay legal fees or if they are waived.
  1. Enforcement and Dispute Resolution
  • Mediation or arbitration clauses for future disagreements.

How Scott Mitchell Law Can Help

At Scott Mitchell Law, we understand that crafting a thorough and enforceable Marital Settlement Agreement is one of the most critical parts of a California divorce. Our firm offers:

  • Legal Review and Drafting: We ensure your agreement complies with California Family Code requirements and protects your rights.
  • Fiduciary and Financial Disclosure Assistance: We help clients prepare accurate and complete disclosures, avoiding costly legal complications.
  • Negotiation Support: Whether working through mediation or traditional negotiation, we represent your best interests throughout.
  • Court Filing and Enforcement: We ensure the agreement is properly submitted to the court and incorporated into your final divorce judgment.
RequirementDescriptionLegal Reference
VoluntarinessNo coercion or fraudFamily Code § 721
Full DisclosureAccurate asset/debt infoFamily Code §§ 2103–2106
Written AgreementMust be signed and writtenFamily Code § 2550
FairnessNo unconscionable termsCase law / equity
IncorporationIncluded in divorce judgmentFamily Code § 2336

If you’re preparing for divorce or finalizing an agreement with your spouse, Scott Mitchell Law can guide you through each step to ensure that your Marital Settlement Agreement is clear, enforceable, and fair.

California Marital Settlement Agreement Checklist

1. General Information

  • Full legal names of both spouses
  • Date of marriage
  • Date of separation
  • Case number and court jurisdiction (county)

2. Financial Disclosures

  • Preliminary Declaration of Disclosure filed
  • Final Declaration of Disclosure (or mutual waiver)
  • Income and Expense Declarations completed

3. Division of Property and Debts

  • Clear list of community property assets and division plan
  • Separate property confirmations
  • Real estate ownership and transfers (title/quitclaim details)
  • Vehicles and registration details
  • Bank accounts and retirement accounts
  • Debts and credit obligations (who pays what)

4. Spousal Support

  • Monthly amount, if any
  • Duration (term or indefinite)
  • Waiver of support if applicable
  • Conditions for modification or termination

5. Child Custody and Visitation (if applicable)

  • Legal custody (joint or sole)
  • Physical custody (joint or sole)
  • Parenting time schedule
  • Holidays, vacations, and special occasions
  • Transportation arrangements
  • Right of first refusal clause

6. Child Support (if applicable)

  • Monthly amount (per California guidelines)
  • Health insurance and uncovered medical expenses
  • Childcare cost allocations
  • Tax dependency claims

7. Tax Matters

  • How parties will file taxes for the final year
  • Division of tax refunds or liabilities
  • Allocation of child-related tax credits

8. Legal Fees

  • Each party pays own fees
  • One party contributes to the other’s fees

9. Miscellaneous Provisions

  • Dispute resolution (mediation or arbitration)
  • Name change request
  • Life insurance to secure support (if applicable)

10. Signatures and Notarization

  • Signatures of both parties
  • Notary acknowledgment (recommended)
  • Space for judge’s approval (if incorporated into judgment)