Marital Settlement Agreements or Postnuptial Agreements

By Shaffer & Engle Law Offices,

As a practicing divorce lawyer, my office routinely drafts marital
settlement agreements ("MSA's") or sometimes called postnuptial
agreements.  They are one in the same.  We have numerous clients that
walk through the door with their own agreements that they have
discussed with their soon-to-be ex spouse.  We need to sit down and
craft them within the bounds of the law and carefully review what's a
good idea and what's not.  Here are some topics to consider in a valid
MSA (this is only a partial list and should not be construed as
providing legal advice or opinion about a specific case):
Disclosure. Full and fair disclosure of all income, assets and debts
is the cornerstone to any valid MSA.  Failure to disclose income or
assets can invalidate the agreement. The agreement should contain a
disclosure provision, either couched in terms of an acknowledgment
that full disclosure has been made to each by the other or an
affirmative representation by each party that he or she has fully
disclosed all assets and income.
Opportunity to investigate or appraise. The agreement may reflect the
fact that the parties had an opportunity to investigate, appraise or
value all or some of the assets of the other party but have chosen not
to do so.
Release. It should be apparent from the MSA that the contents
described therein contain a "release" from any future claims.  In
other words, the MSA covers all claims from the marriage under the
Divorce Code.
Contingency or "self-destruct" clauses. The parties may wish to
provide that the agreement is to be contingent upon entry of a decree
in divorce and that it is automatically deemed null and void if a
decree is not entered within a specified period of time.
Waiver of estate rights. A provision citing the Probate, Estates and
Fiduciaries Code to the effect that statutory rights are being
acknowledged but are being modified or waived may be included.
Waiver of rights under the Domestic Relations Act. A specific
reference to the Pennsylvania Domestic Relations Act may be included
with an acknowledgment of the existence of the statutory rights being
modified or waived.
Equitable distribution. All of the parties' marital property should be
disposed of in one way or another in the agreement.  Where documents
are required to effect a conveyance or transfer, such as deeds and car
titles, the agreement should provide that the parties will execute
whatever documents are necessary to implement their agreement.
Mortgages. Refinancing, payoff, or sale of the real estate subject to
the mortgage should be clearly listed in the MSA.  It is not enough to
assume that if real estate is transferred from one spouse to another
that an obligation to be solely responsible for the mortgage will
follow with the transfer.
Counsel fees and expenses. The agreement should include a provision
regarding legal expenses in the event of breach, both as a remedy and
as a deterrent to a party tempted to disregard performance under the
agreement.
Debts. The agreement should specifically reference any outstanding
debts, either joint or separate, and which party is to pay them and
when.
Retirement benefits/insurance waivers. Waivers of a party's beneficial
interest in the spouse's retirement benefits or insurance policies, or
waivers of any other assets that require the execution of separate
documents such as beneficiary designations or written waivers of the
spouse's survivorship interest pursuant to the Retirement Equity Act,
should be explicit and should require the waiver whether or not the
employee spouse or owner of the insurance policy actually follows
through on the other paperwork.
Default. Provisions specifying remedies in the event of default or
breach may be included. For example, if a default in installment
payments is intended to permit a confession of judgment for the entire
amount due and not just the past due installments, the agreement must
contain an acceleration clause.
Alimony and spousal support. Waivers of support or alimony should be
specifically stated. The agreement should describe the tax treatment
to be accorded to cash payments to the payee as well as third party
payments for the payee's benefit, such as medical insurance, premiums,
mortgage payments and so on, all of which may be treated as alimony
for federal income tax purposes.
Remarriage or cohabitation. If alimony payments are to terminate upon
either the remarriage or cohabitation of the payee, the agreement must
specifically so state.
Child support. An agreement regarding child support, visitation or
custody is subject to modification upward or downward by the court
upon a showing of changed circumstances.  An agreement relating to
child support that is against public policy or is unsupported by
consideration may be unenforceable.
Education. Provisions requiring the parties to contribute to the
posthigh school educational expenses of their adult children are
enforceable.
Custody. On the theory that parents may not bargain away their
children's rights, the court is not bound by provisions relating to
custody and visitation, and these provisions are subject to
modification upon a showing of changed circumstances.

For more information on these matters, please call our office at 305
548 5020, option 1.

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"Turn to us when you need help"

--
Sincerely,

Tatiana, Restrepo, Front Office Manager
From the Law Office of Yoel Molina, P. A.
Office: 305-548-5020
782 NW 42nd Ave, Suite 343, Miami, Fl. 33126 in the "Ocean Bank" Building

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