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Drafting a California marital settlement agreement

by Stan Burman

Drafting a California marital settlement agreement is the topic of this blog post. 

California marital settlement agreements are widely used in uncontested divorces to ensure that the divorce can be entered without either party actually having to appear in Court.

A marital settlement agreement (MSA) in California is used by the spouses in a dissolution (divorce) action in an attempt to resolve their contested disputes and claims. A comprehensive and well written marital settlement will usually provide for all of the following matters:

Characterization of property interests and characterization and division of the community estate (assets and debts);

Adjustment of reimbursement claims and income tax issues;

Payment of child support, spousal support and attorney fees and costs;

Child custody and visitation; and

Certain waivers and indemnification agreements between the spouses.

Exchange of statutorily-required "preliminary" and "final" "declarations of disclosure"

Full compliance with Family Code § 2100 et seq. is an essential step toward the consummation of an effective MSA and the entry of judgment thereon.

An exchange of prescribed "preliminary" disclosure declarations is mandatory and nonwaivable.  See Family Code § 2104.

And, unless excused by the court for good cause, "final" declarations of disclosure must be exchanged before or at the time the parties enter into an agreement resolving property or support issues. See Family Code § 2105(a).

If the mandatory declarations of disclosure are not exchanged the MSA is invalid and will not be accepted by the Court.  I cannot stress this enough.

And while, subject to statutory conditions, the parties may stipulate to a waiver of the final declarations of disclosure, the waiver does not limit their underlying fiduciary disclosure obligations. To put it another way it simply amounts to a representation that those disclosures have been made. See Family Code § 105(d).)

Since the facts and circumstances of each case vary, where the issues involved include, custody, visitation, support, property division, debt division, or other similar issues, a marital settlement agreement should be carefully drafted to meet the needs of the particular parties involved.

The typical contents of an MSA will include:

Identity of the parties and recital of facts including the date of marriage and date of separation.

Identity of property, distribution of community estate, and confirmation of separate property.

Provision for payment of debts and adjustment of reimbursement claims.

Custody of children and visitation rights.

Child support, including provision for medical, dental, and special educational or other needs (if any); and, if applicable, including agreement as to the support of adult children.

Spousal support (including, as applicable, provisions for life insurance, survivor annuities, and the like); or waiver of spousal support.

Attorneys' fees and costs.

Tax provisions.

Effect of reconciliation.

Judicial action contemplated.

Warranties.

After-discovered property.

Waiver of rights, including rights in deceased spouse's estate.

Modification, revocation or termination.

Costs of enforcement.

Execution of related documents.

Effective date.

"Severability" clause.

Execution by parties.

Marital settlement agreements are considered to "occupy a favored position" in California law. Generally, therefore, an MSA that is "not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court." However there are some limitations which must be kept in mind when drafting an MSA.

Marital settlement agreements cannot abridge the parents' mutual statutory child support obligation or impinge on the court's jurisdiction to award child support. This means that an MSA cannot contain a provision in which one party "waives" child support. The issue of child support can be "reserved" which means that the Court retains jurisdiction to order child support in the future, but it can never be waived.

Marital settlement agreements cannot limit a court's exercise of custody jurisdiction over the minor children of the marriage.

To the extent a marital settlement agreement purports to prescribe the religious upbringing of the parties' minor children, it is probably unenforceable. Marriage of Weiss (1996) 42 Cal.App.4th 106, 114-115, 118.

There is no prohibition against a waiver of post-dissolution spousal support. If the spouses separate by agreement, neither owes the other a duty of support unless they otherwise agree, see Family Code § 4302); and any right to support after dissolution exists, if at all, only under the terms of the judgment. Thus, a voluntary, knowing and intelligent waiver of support in a marital settlement agreement will be enforced according to its terms. Note that a waiver of spousal support for a "long-term" marriage of ten years or more must be clear and unequivocal.

The "confidential relationship" between spouses carries attendant fiduciary obligations in intraspousal transactions and in the management and control of the community estate, see Family Code §§721(b), 1100(e). All "confidential relationship"/fiduciary duties (including broad disclosure obligations) continue postseparation until the community estate is distributed and support and professional fee issues are resolved. Family Code §§ 2102, 1100(e).

Subject to limited statutory exceptions, marital settlement agreements (like all spousal contracts) must comply with general principles of contract law. The contract law defenses include (among other things) mistake, failure of consideration, unlawfulness of the contract and prejudice to the public interest. Other general contract concepts which may be relevant in drafting or enforcing a marital settlement agreement include.

Each party's consent must be voluntary and knowledgeable, given free of fraud, undue influence, duress, menace, or mistake. Civil Code §§1566-1579. 

Attorneys or parties in California who would like to view a portion of a sample 18 page marital settlement agreement that is sold by the author can use the link shown below.

Sample Marital Settlement Agreement for California by Stan Burman on Scribd

 

Attorneys or parties in California who would like more information on a California divorce litigation document package containing over 45 documents including a sample marital settlement agreement sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/products/california-divorce-document-collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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