In most divorce cases, parties settle their disputes through agreements rather than going to trial, a practice promoted by the Illinois Court system. Specifically, Section 502 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA)(750 ILCS 5/502) provides that parties may enter into agreements to resolve issues pertaining to the dissolution of their marriage. When the divorce settlement is incorporated into the Judgment for Dissolution of Marriage (which is what many may refer to as the “divorce decree”), we refer to it as the “Marital Settlement Agreement” (aka, MSA or divorce settlement agreement). This MSA process can significantly impact the dissolution of marriage, offering a smoother and more amicable resolution.
Table of Contents
- What Is a Marital Settlement Agreement?
- Legal Implications of Divorce Settlements and Their Binding Nature
- What Are the Benefits of a Marital Settlement Agreement?
- Less Court Time
- More Cost-Effective
- Less Hostility
- Faster Resolution
- Comparative analysis: Settlement vs. Litigation: Cost Comparison, Timeframe, Emotional Toll
- Specific Considerations for High-Net-Worth Individuals in Divorce Settlements
- Conclusion
What Is a Marital Settlement Agreement?
An MSA is an agreement between two parties who are seeking a divorce. MSAs are tailored to the individual needs of the divorcing couple, including provisions for the division of real estate, personal property, financial accounts, retirement accounts, issues related to child custody and support, and maintenance.
Helpful Resource: Guide to Property Division in Divorce
In a way, MSAs are written contracts between the divorcing parties dictating how the separation will proceed, and who will get what assets. The Court will then incorporate the MSA into the Judgment for Dissolution of Marriage (as long as the Court does not find the MSA to be unconscionable), which finalizes the parties’ divorce process.
Legal Implications of Divorce Settlements and Their Binding Nature
Settlements are just as binding as if a judge were to make the final determination on a case. This is because settlements are incorporated into the final judgment.
A notable difference between settling and having a judge make the final determination is that settlements cannot be appealed.
After a trial, if the other party is dissatisfied with the results, they can appeal. This often requires a response and navigating the costly appellate process.
If the parties agree and settle the case, there is no possibility of an appeal, because a judge did not make the decision. This helps to curb the costs and to give the parties a sense of finality after a settlement.
What Are the Benefits of a Marital Settlement Agreement?
Marital Settlement Agreements have many benefits. Some of the benefits include a party spending less time in court, spending less money on the process, facing less hostility between the other party, and, potentially, reaching a faster resolution.
Less Court Time
Most people prefer to spend as much time outside of a courtroom as possible.
Sometimes, parties may agree not only to the divorce itself but also to the terms of the settlement. These are what we refer to as “uncontested matters”. In an uncontested divorce, our office will work on drafting an MSA based on the agreed-upon terms, and typically there is only one court appearance required.
Compare this scenario to one in which the parties do not agree: in a contested matter, the parties may require multiple hearings before the Court before they can come to an agreement or before a trial is held. If a party is uncomfortable or nervous about the courtroom environment, this can cause a lot of additional stress.
Sometimes a case can begin as a contested matter but later be settled by an agreement. There is no set point during a case during which a settlement can occur – they can happen at any point so long as the parties are in agreement.
More Cost-Effective
Uncontested matters typically require fewer attorney hours to complete an MSA. It’s normal for parties to review and revise the draft MSA a few times before finalizing it. Even with revisions going back and forth, the MSA drafting in an uncontested matter can cost relatively minimal attorney fees and costs.
Compare this scenario with that of a contested matter.
Frequent court appearances, drafting numerous pleadings, and completing extensive research can cause clients to incur large invoices from their attorney. For example, going to a trial requires the attorney to not only spend long hours in the courtroom on the day of the trial. It also requires them to review the case leading up to the trial, not to mention the long process of getting a case ready for trial. In such a situation, the amount of money spent on a divorce can be substantial.
When cases are unnecessarily litigated, the parties can instead attempt to negotiate, thereby decreasing the amount of time and money that will be spent on the case if a successful settlement is reached.
Pro Tip: Every issue that you resolve by a settlement decreases the cost of a divorce.
Less Hostility
When parties communicate to reach a settlement, the process is often less hostile. This can be not only helpful for the parties during the divorce but also can be helpful for the rest of the family.
For example, when parties are able to peacefully come to an agreement to end their marriage and enter an MSA, the children of those parents are able to exist in a healthier environment. Reaching an amicable conclusion to a marriage can set the standard for how the parties will interact after the Judgment for Dissolution of Marriage is entered, in that parties who know they can effectively communicate with the other can attempt to reach agreements in the future for any issues not contemplated when drafting an MSA. This promotes a healthier family dynamic for the children and parties moving into the future.
Faster Resolution
Many times, by the time the parties have accepted that it is best to get a divorce, they are anxious to get the process over with in order to embrace the next stage of their life. Reaching an agreement through entering an MSA is a great way to reach that finish line faster. As long as the parties are able to cooperate and complete their respective requirements in a timely manner, then a Judgment for Dissolution of Marriage can occur much more quickly than engaging in an extended litigation.
For example, if a case requires extensive litigation, a divorce will not take a matter of months. Instead, it can take upwards of a year and a half, depending on the situation. Marital Settlement Agreements are a great way to reduce the time spent waiting for the divorce to be finalized.
Comparative analysis: Settlement vs. Litigation: Cost Comparison, Timeframe, Emotional Toll
As we now know, settlements typically cost less, reach resolution more quickly, and involve less hostility. However, many people overlook a key advantage of settlements: they allow parties to maintain more control over the process.
In a settlement, the parties are not putting major decisions about personal issues into the hands of a stranger. Judges aim to be fair in family law cases, but it’s understandable to feel anxious about entrusting important family and financial issues to a stranger. Settlements allow the parties to have better control over the outcome of their marriage.
Specific Considerations for High-Net-Worth Individuals in Divorce Settlements
High-net-worth individuals often prefer settlements over trials for various reasons, with privacy being a major one. Filing a document with the Court makes it part of the public record. After a trial, the Court’s Judgment for Dissolution of Marriage includes facts and background that become public. In contrast, when parties settle, they can request that the Court incorporate the Marital Settlement Agreement by reference only in the Judgment for Dissolution. This keeps the details of their assets private. Courtrooms are public forums, meaning any third party, except witnesses, can listen to trial details. To maintain privacy, many choose to settle instead.
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Conclusion
Opting for a divorce settlement can save time, reduce costs, and minimize conflict. Contact Anderson Boback & Marshall for expert guidance on negotiating a fair and comprehensive marital settlement agreement. Our experienced attorneys are here to help you navigate the process smoothly and protect your interests. Schedule a consultation today to learn more.
