The marital settlement agreement: what it covers and why it is attorney-prepared

What the law does without an agreement, and what an agreement can change

Family Code section 2550 provides that, except on the written agreement of the spouses or their oral stipulation in open court, the court shall divide the community estate equally. That is the rule the agreement works against or with. Where the two of you want an equal division, the agreement states it item by item so that the court can enter it; where you want something other than equal, because one of you keeps the car and the other keeps the savings, or one takes a debt in exchange for an asset, the agreement is the written consent the statute requires, and it must be clear that both of you know what you are agreeing to.

The agreement cannot change what the law requires before it is entered. Family Code section 2106 provides that no judgment on property rights is entered until each spouse has served a final declaration of disclosure and current income and expense declaration, or has waived the final disclosure under section 2105(d). The Judicial Council's guide says the same in its own words: if your agreement is about property or support, you complete or waive your final disclosures before or when you write out the agreement. In an uncontested case the two of you sign the Stipulation and Waiver of Final Declaration of Disclosure (form FL-144) with the agreement, and it states under penalty of perjury that the preliminary disclosures were exchanged and are complete.

Community and separate: the two kinds of property the agreement sorts

California divides property into two kinds, and the agreement must treat each correctly. The Judicial Council's guide states the general rule: community property is what either of you earned, bought with earnings, or owed between the date of marriage and the date of separation, whichever of you earned it and whoever's name is on it; separate property is what each of you owned or owed before the marriage or after the date of separation, anything bought with separate property or earned from it, and any gift or inheritance to one of you at any time. In general, the guide says, you keep your separate property and split your community property.

Family Code section 2581 adds a presumption that matters for anything the two of you hold in both names: property acquired during the marriage in joint form, whether as joint tenants, tenants in common or community property, is presumed to be community property for the purpose of division, and the presumption can be rebutted only by a clear statement in the deed or other title document that the property is separate, or by proof of a written agreement between the two of you that it is separate.

The guide also describes mixed property, which it calls commingling: a down payment from one spouse's savings before the marriage on a home paid for afterwards with community earnings, or a retirement account begun before the marriage and contributed to during it, is part separate and part community. An agreement that confirms an asset as one spouse's separate property or divides a mixed asset has to say how, and why, so that it holds up. The office drafts from the characterization you give each item in your intake, and the intake asks for the reason wherever an item is marked separate.

The date of separation

The agreement states the date of separation, and it is not a formality. The Judicial Council's guide explains that the date of separation is the day there was a complete and final break in the marriage: the day one of you decided it was over and acted on that decision, whether by moving out or by living separately under one roof, and after which your conduct matched the decision. It affects what is community and what is separate, because earnings and debts after that day are generally separate, and it fixes the length of the marriage, which the law measures from the date of marriage to the date of separation.

The guide notes that the two of you do not have to agree on the date, but in an uncontested divorce you do agree on it: an ordinary petition states it (Family Code section 2330(b)), a joint petition lists it among the matters the two of you will settle (section 2330(c)), and the agreement states it. Where the date is unclear, the guide's questions about intent, living arrangements, finances and what you told others are the way to settle it between you before the office drafts anything.

What the agreement covers

The date of marriage and the date of separation. The division of community property, item by item: accounts, vehicles, furnishings, retirement accounts where they can be divided without a separate court order, and anything else of value, each awarded to one of you or divided as you agreed. The confirmation of each spouse's separate property. Who pays each community debt, with each of you holding the other harmless on the debts assigned to you. Spousal support: waived by both of you forever, reserved for the court to decide later, or agreed at an amount and for a period, each with the words the law requires. A former name restored, if one of you wants it. Taxes: who claims what for the year of separation, and who bears any liability on a joint return. What happens to an asset one of you forgot to list, so that an omission does not reopen the whole agreement. And how the agreement becomes part of the judgment and is enforced as an order of the court.

Where the agreement awards a home to one spouse, it states the other spouse's obligation to sign the deed that transfers title. The deed itself is not prepared by this office. The two of you arrange it through a title company, an escrow company or a real property attorney, and the agreement says so plainly, because a direction a client cannot act on reads as a promise nobody made.

The Judicial Council's guide lists the attachments a court expects to see with an agreement about support or property, and the office uses them where they apply: the Spousal, Partner, or Family Support Order Attachment (form FL-343), with the Spousal or Domestic Partner Support Factors attachment (form FL-349) where support is ordered, and the Property Order Attachment to Judgment (form FL-345). The guide warns that there are certain words or phrases the court expects to see in the agreement and that the court cannot accept it without them.

Spousal support: the clause that must be drafted with care

Spousal support is the term that differs most from one agreement to the next, and the one a template gets wrong most often. The two of you may waive it forever, in which case the agreement must say so in words that show both of you understood what you gave up, with the court's attachment stating the factors the law considers. You may reserve it, leaving the court able to order support later on a proper showing, which keeps the question open rather than closing it. Or you may agree to an amount, a start date and an end date, and whether the end is fixed or the court keeps the power to extend it.

A waiver in a marriage of ten years or more is drafted with particular care. Family Code section 4336 provides that in a marriage of long duration the court retains jurisdiction over spousal support indefinitely except on the written agreement of the spouses, and presumes a marriage of ten years or more, from the date of marriage to the date of separation, to be one of long duration; an agreement that ends that jurisdiction must say so in writing. The office drafts the clause from the choice the two of you made in the intake and the facts you gave; it does not choose for you. The other spouse is not advised by the office and may take the clause, and the whole agreement, to an attorney of their own choosing before signing.

Why the attorney drafts it from your terms

You and your spouse agree the terms; the attorney puts them into an agreement written in the terms the court requires for entry. A waiver of spousal support must say what the law requires it to say. A debt assigned to one spouse needs a clause saying what happens if that spouse does not pay it. An unequal division must be knowing, or it invites a later claim that it was not. A template does not know your facts; the attorney reads them.

The Judicial Council's guide puts the stakes plainly: agreements about property are very hard to change, and if your agreement has to do with the sale of a home or a retirement account, you should consult a lawyer. Family Code section 2104 adds the other side of the same point: perjury on a declaration of disclosure may be grounds for setting aside the judgment, which is why the agreement rests on complete disclosures.

The agreement uses your names throughout, never the court's role labels. Every figure in it is one you entered; nothing is estimated. One revision round is included in the flat fee of $1,499 on an ordinary petition and $999 on a joint petition; a further round is quoted before any work is done.

Signing it

Both of you sign in ink before a notary of your own choosing, and the notary's certificate of acknowledgment is attached to each signature. The office does not provide a notary. The Judicial Council's guide says that where your spouse has not filed a response, their signature on the agreement must be notarized, and describes the visit: bring identification, sign in front of the notary, the notary stamps the document, and a fee is paid for each signature, usually $15.

Law Offices of Rozsa Gyene represents the spouse who engages it only. The other spouse is never a client of this office in the divorce, is not advised by it, and may take the agreement to an attorney of their own choosing before signing; the agreement says so, and the office's guide for the other spouse says so again.

How it becomes the judgment

The signed agreement is attached to the Judgment (form FL-180). California Rules of Court, rule 5.411 provides that a stipulated judgment must be attached to form FL-180, must contain the exact terms of the judgment to be entered, must dispose of every matter before the court or expressly reserve it, and must end, immediately above the judge's signature, with the signature block the rule prescribes for both spouses. It also provides that a stipulated judgment constitutes a written agreement between the spouses as to every matter it covers.

From the day the judgment is entered, the agreement is an order of the court. The property terms and the support terms take effect then; the marriage ends on the date the judgment states, which is never earlier than six months from service or appearance (Family Code sections 2339 and 2340). If one of you does not do what the agreement says, the Judicial Council's guide explains that you may go back to court to enforce it, and that the court does not collect money for you: a spouse owed money under the judgment asks the court for orders to collect it.

What the agreement cannot do, and what the office does not do

The agreement cannot divide a pension that needs its own court order, because that order is a separate document the plan must accept; a case with such a pension is outside the flat fee, and the screening says so before you pay. It cannot shorten the six months. And it cannot be entered without the disclosures the law requires.

The office drafts the agreement from the terms you give, reviews it before release, revises it once within the flat fee, and prepares the judgment that carries it. It does not negotiate between the two of you. Where the two of you stop agreeing, the case is no longer uncontested and the engagement ends as the engagement letter provides.

Rozsa Gyene, State Bar of California No. 208356, 3500 W. Olive Ave., Suite 300, Burbank, CA 91505.