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Issues You Can Negotiate, but Not Litigate, in a Divorce

Lerch Early's Legal Update 2019, Vol. 1

We all know someone who has been through a “nasty” divorce.

Lawyers’ fees and experts’ testimony, months (and sometimes years) of stressful depositions, document production, and trial preparation often take a large toll on the couple. Adding to the pain of divorce court is the involvement of neighbors, friends, and family who are called as witnesses, enduring psychiatric and/or custody evaluations (and the costs of those), and leaving the most important decisions in one’s life up to a judge who has only heard testimony for a few hours or a few days.

These are just a handful of the potential pain points of settling a divorce in court. However, there is another way: resolving your issues by reaching a Marital Settlement Agreement (MSA) rather than by litigation.

The Case to Negotiate

Here are seven reasons to seek an MSA instead of litigating your divorce:

1) In many states, including Maryland, judges are not authorized to order life insurance in a divorce. In a MSA, you and your spouse can agree to carry life insurance to ensure that all support or other provisions will be covered if the other spouse dies.

2) The legal obligation to pay child support continues only until certain termination events occur, as specified in each state’s law. With certain exceptions, child support terminates in the District of Columbia at age 21, and in Maryland once a child has turned 18 and graduated from high school (but no later than age 19). A judge has no power to order a parent to pay for a child’s college, health insurance, non-covered medical expenses, or other expenses beyond the termination events provided by law, unless parents agree. In an MSA, parents can provide for 529 contributions, payment of tuition, room and board, books and fees, and other living expenses for a child while in college, trade school, or other post-high school training or education, as well as health insurance and other expenses of the child beyond “emancipation” age, to whatever extent the parents agree.

3) A judge may or may not order a parent to contribute to camp, extracurricular activities, tutoring, private school, SAT/ACT/AP test prep courses or test fees, college applications, driver’s education, or other “elective” expenses in addition to basic child support as part of a divorce. All of these may be provided for in an MSA.

4) A judge will determine what property is marital, the value of same, and how that property or its value should equitably be divided. The judge does this based on the evidence that has been presented in court, and then applies his/her discretion in deciding what distribution will be equitable. Unless the judge has committed clear abuse of discretion or error based on the record (in which case either or both parties may appeal), the parties may be stuck with a result that often neither party likes. When an MSA is reached rather than going to court, the parties can control the outcome, can include tax structuring, can agree to buy-out or trade the family home, cars, or other property, assets, and debts, and can arrange the distribution of each item of their property as they mutually agree.

5) Court orders often contain broad provisions with few details. So even after the trial judge has ruled, there may be many “what about” questions or lack of clarity relating to how or when certain terms of the order are to be implemented. The parties in that case are left to file more legal paperwork asking the judge to alter or amend or to clarify the order. This adds to cost, time, stress, and uncertainty, and ongoing litigation. With an MSA, the parties can include all of the details they need in order to address all aspects (interpretation, implementation, timing, and enforcement) of the provisions they are agreeing to, with no loose ends.

6) Where children are involved, parents can agree in an MSA to whatever access schedule and living arrangements best fit the children’s needs. The parents can agree to move in and out of the house (“nesting”) rather than having the children move back and forth between homes, or to allow one parent to enter the other parent’s home to spend time with the children if both parties agree that that is desirable. They can agree for one parent to continue residing in the family home with the child(ren) beyond the period of use and possession that a judge has the power to order. They can agree to prohibit or allow various parenting practices, a child’s religious upbringing, or other matters that a court will not regulate. In general, a trial judge will order custody and an access schedule, and may award use of the family home to one parent, but without most of these kinds of details that parents can include by agreement.

7) While a judge has the authority to transfer ownership of certain property from joint title to only one party’s name, this only occurs in limited situations. With an MSA, the parties may agree to buy-outs or trades of marital property with or without refinancing or other terms that a judge would impose.

Beth Weisberg handles all aspects of divorce cases, including matters involving separation, custody, alimony, property division, and premarital agreements in Maryland and the District of Columbia. For more on Marital Settlement Agreements, contact her at 301-657-0160 or ejweisberg@lerchearly.com

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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