Many New Jersey divorces end with an agreement rather than a trial. But reaching an agreement is only part of the job.
Once you and your spouse have agreed upon the major issues, someone has to turn those decisions into a document that clearly explains exactly what each of you is agreeing to do.
That document is commonly called a Matrimonial Settlement Agreement, or MSA. You may also hear terms such as Property Settlement Agreement or Marital Settlement Agreement.
Whatever you call it, I think the drafting deserves considerably more attention than people sometimes give it. Because you're not simply writing down what you agreed to today. You're creating a document that may govern important parts of your life for years.
I Think of Drafting an Agreement Like Sculpting
I'm not a sculptor. I've never taken a block of stone and turned it into a piece of art. But I've always thought that drafting a divorce settlement agreement must be somewhat similar.
I imagine a sculptor begins with a large block of stone and an idea of what the finished piece should look like. First, the big pieces come off. Then the sculptor starts working on the smaller details until eventually the final shape emerges.
That's similar to how I approach a settlement agreement. I start with the major issues that need to be resolved. Depending upon the case, that may include custody and parenting time, child support, alimony, the marital home, retirement accounts, investments, businesses, debts, insurance, taxes and other property.
Those are the large pieces of stone. But once those major issues are addressed, the detailed work begins.
The Details Are Where an Agreement Can Become Complicated
Suppose the parties agree that one spouse will keep the marital home. That sounds simple. But what happens to the mortgage? When does the other spouse come off the loan? Is refinancing required? By what date? Who pays the mortgage, taxes, insurance and repairs until then? What happens if refinancing isn't possible?
Or suppose the parties agree to divide a retirement account. Which account? What percentage? What valuation date applies? Who prepares the necessary order? Who pays the cost of preparing it? The same problem can arise with parenting provisions.
Saying that parents will "share holidays" sounds agreeable until Thanksgiving arrives and each parent has a different understanding of what that sentence means. Good drafting tries to anticipate those problems before they become problems.
Words Matter
When I draft an agreement, I'm constantly thinking about how the language might operate months or years later. I want the agreement to clearly express what my client believes was negotiated.
I also want to know whether a provision could be misunderstood, whether an important contingency has been overlooked, or whether the wording creates an obligation my client never intended to accept.
That's why seemingly small wording choices can become important. A vague agreement can create another dispute. A carefully drafted agreement should reduce the opportunity for one.
Every Family Needs a Different Agreement
There isn't one perfect Matrimonial Settlement Agreement that works for every divorcing couple. A family with young children has different concerns from a couple whose children are adults. A business owner may need provisions addressing valuation, ownership, liabilities or future payments that another couple would never need. Someone receiving alimony has different concerns from someone paying it. A couple selling a house needs different language from a couple where one spouse intends to remain in the home.
That's why I don't view an MSA as simply a standard form where you fill in a few blanks. The agreement should reflect the actual family and the actual settlement.
Your Input Is Part of the Drafting Process
Once I prepare an initial draft, I want my client to read it carefully. Sometimes a client notices something I couldn't have known.
Maybe a proposed parenting provision doesn't work because of a child's activity schedule. Maybe there is a recurring family expense that hasn't been addressed. Maybe the language accurately reflects the negotiation from a legal standpoint but doesn't match what the client thought was agreed upon. Those conversations matter.
The draft may then go to the other attorney, who proposes changes. Language goes back and forth. Certain provisions may need additional negotiation. Eventually, the goal is to have a document that both parties can sign and that accurately reflects their settlement.
Don't Stop Paying Attention Just Because You've Settled
People understandably feel relieved when they hear: "We have a deal." But don't mentally check out at that point. Read the agreement. Ask questions about language you don't understand. Make sure the important terms match what you believe you agreed upon. Think about how those provisions will actually work in your life.
Your divorce settlement may address your children, your home, your retirement, your support obligations and a substantial portion of the property you've accumulated during your marriage. The wording deserves your attention.
A good settlement isn't simply about reaching an agreement. It's about making sure the agreement you reached is clearly and carefully put into words.
If you're trying to understand settlement, property division, support, custody and the other decisions involved in a New Jersey divorce, my free Divorce Smarter Course will help you understand the process before making important decisions.
Until next time,
Steve