What is a Marital Separation Agreement?

A Marital Separation and Voluntary Settlement Agreement (also called a “Marital Separation Agreement” or an “MSA”) is a binding contract between the parties that settles some or all of the issues involved in a marital separation. Typically, a married couple will reach an agreement concerning issues like child custody, support and visitation, spousal support, divide their marital property and debts as well as decide who will live in the marital home. The MSA usually covers other areas as well; including, taxes, college tuition, health and life insurance coverage, and rehabilitative or indefinite alimony. 

The benefits of the MSA (as opposed to a contested divorce hearing) are primarily that: (1) it’s quicker; (2) it allows the parties to negotiate a resolution to their marriage without a judge imposing one on them; (3) the parties remain legally married (which is often an advantage as described below); and (4) it’s much less expensive than contested divorce litigation.

The Benefits of Remaining Married under an MSA:

Until a Judgment of Absolute Divorce is entered by a court, the parties remain legally married. The military service member remains entitled to housing allowance at the “with dependents” rate (usually worth about $300 per month). The military spouse continues to be covered by the military health insurance plans (TRICARE and Delta Dental) without COBRA charges. Also, any pension (including Thrift Savings Plan benefits or other property) the military member accrues before the final divorce date is considered marital property and generally divided equally between the parties. Likewise, any property the non-military spouse acquires during the separation period (with certain exceptions) will be considered marital property.     

Marital Separation Agreement vs. Limited Divorce:

One problem with Marital Separation Agreements is that they require an agreement between the parties. Almost by definition, divorcing couples have difficulty reaching agreement; particularly on the issues that caused their estrangement. Without an agreement or court order, the parties are in a state of legal limbo regarding access to their children and support.  Absent a court order (or binding agreement between the parties) both parties are equally entitled to custody of their minor children. 

Also, child support and spousal support are discretionary and either party can spend down the family savings, sell marital assets, or charge up joint credit accounts. The inability to negotiate an MSA leaves both parties to seek intervention from the court, or from the service member’s commander, if available.