FAQs About District of Columbia Marital Separation Agreements

Frequently Asked Questions About Marital Separation Agreements

Q. What is a Marital Separation and Property Settlement Agreement (MSA)?
Q. Why is a Marital Separation and Property Settlement Agreement important?
Q. Do I have to file a Marital Separation and Property Settlement Agreement with the Court?
Q. What is the difference between a contested or uncontested divorce?
Q. How long are the parties bound by a Marital Separation and Property Settlement Agreement?
Q. Do the courts review the fairness of a Marital Separation and Property Settlement Agreement?
Q. What is the difference between "marital property" and "non-marital property"?
Q. How is property divided in Washington, D.C.?
Q. What are the rights of unmarried couples in Washington, D.C.?

The Marital Separation and Property Separation Agreement (MSA) that you create using our online document automation technology within this Web site will cover every major circumstance and enable you to deal with the following issues:

• Visitation
• Child support payments under Washington, D.C. law
• Spousal maintenance under Washington, D.C. law
• Property division
• Division of debts
• Health insurance
• Disposition of the marital home
• Pension plans
• Tax issues
• Future dispute settlement

Ordinarily you execute an MSA before you file your divorce papers, normally at the time that you separate. If you purchase our combination package you receive both the MSA and your divorce forms.

This allows you to negotiate and execute your MSA and then to file for your divorce as soon as the waiting period has been completed.

What is a Marital Separation and Property Settlement Agreement?

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.

When you initially execute a marital separation agreement you usually do not have to file the separation agreement with the court to be effective.

Why is a Marital settlement agreement fimportant?

If you have no marital property, no joint debts, and no children, you probably don't need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Settlement Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.

In Washington, D.C., if you have a Marital Settlement Agreement your divorce pleadings will be simpler and less complicated, and it will be absolutely clear to the court that you have an uncontested divorce.

Do I have to file a Marital Settlement Agreement with the court?

When you initially execute your Marital Settlement Agreement you do not have to file the Agreement with the court to be effective.

The typical separation agreement, or a stipulation of settlement resolving a divorce, should state whether the agreement is to survive the judgment of divorce as a separate contract, or whether it should be merged and incorporated into the judgment of divorce thus allowing for modification similar to a court order. Which should you choose?

Where It Does Not Matter

• Your decision will have no effect on the issue of custody and visitation because these issues can be modified until a child reaches the age of 18. The court will base its decision upon whether there is a change of circumstances that render it in the child's best interest to modify the custody and/or visitation provisions.
• Your decision will also have no effect on the issue of distribution of assets. The Court will not modify the terms of distribution.

Where It Makes a Significant Difference

• Spousal Support/Maintenance — If you have stipulated in advance that your divorce agreement will be merged into the judgment of divorce, then the court can later modify the duration and amount of maintenance if circumstances are presented to warrant the raising or lowering of the amount. However, if the divorce agreement survives the judgment, it is a contract that the court may not modify.
• Child Support — If the agreement on divorce merges into the judgment, then the court may modify that support upward or downward when a change of circumstances warrants modification. On the other hand, if the agreement survives the judgment, then the standard for upward modification is an unforeseen and unanticipated change of circumstances that would warrant an increase in support. However, a request for a downward modification in support is significantly harder to prove, and is therefore something to think about when deciding whether or not to elect this option.
• Right to Sue — If the agreement survives as a separate contract, then even if the judgment is modified by the court, the other party can sue under contract law to enforce the contract obligation, obtain a money judgment for what is owing and seek to collect it. If, however, the agreement is merged and the judgment is modified, then the payer cannot separately sue for enforcement of the contract. Indeed, in this situation there is no separate surviving contract on which to sue.

What is the difference between a contested or uncontested divorce?

Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case — the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories:

• Consent Divorces — The parties agree on all major issues in a consent divorce.
• Default Cases — The respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Settlement Agreement you make your divorce an uncontested divorce.

How long are the parties bound by a Marital Settlement Agreement?

A separation agreement is a legal document that will bind you through many years and determine your rights, obligations and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.

Do the courts review the fairness of a Marital Property Settlement Agreement?

In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.

In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.

What is the difference between "marital property" and "non-marital property"?

In an "equitable distribution state" state, like Washington, D.C., all property acquired during the marriage is "marital property" and all property is divided into marital property (which means it is both yours and your spouse's) and non-marital property (which means the property belongs to either you or your spouse alone). In general the following rules apply which categorizing property into "marital" or "non-marital property":

• If the asset or debt was acquired after the date you were married it is presumed to be a marital asset or debt.
• A non-marital asset or debt is one that was acquired before the date of your marriage. It is also a non-marital asset if you acquired it through a gift or inheritance. Income from non-marital property is also considered non-marital property.
• Even if an asset or debt was acquired by your spouse individually, it is considered to be a marital asset or debt, if acquired during the marriage. This includes rights in pension and profit-sharing plans.
• Real estate that is in both names is considered marital property.

How is property divided in Washington, D.C.?

In Washington, D.C., the basic rule is that all marital property is divided equally.

What are the property rights of unmarried couples in Washington, D.C.?

Washington, D.C. does allow the creation of a "common law" marriage, a relationship in which a couple lives together but have not participated in a lawful ceremony. Unlike some other states, in Washington, D.C. a couple can acquire marital rights and responsibilities by living together for a particular period of time.

Cohabitation generally means two unmarried people in a relationship living together. It may be a casual, temporary relationship, an experiment in living together preceding marriage, or a more permanent alternative to marriage.

To purchase a Marital Separation Agreement bundled with Legal Advice, click here.

Granat Legal Services, P.L.L.C.
1629 K Street, N.W., Suite 300
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Granat Legal Services, P.L.L.C represents divorce clients online in the District of Columbia.