Common Mistakes to Avoid When Drafting a Marital Settlement Agreement

A marital settlement agreement (MSA) is a crucial part of many divorce cases in California. It outlines how spouses will handle property division, spousal support, child custody, and other financial matters once the marriage ends. While this document can reduce courtroom battles and provide clarity for both parties, a poorly drafted MSA can cause significant problems down the line. Avoiding common pitfalls during the drafting process helps prevent unnecessary stress, legal disputes, and financial consequences.

Leaving Out Key Assets or Debts

One of the most common mistakes is failing to list all assets and liabilities. Sometimes this happens by accident. Other times, it results from one spouse withholding information. Either way, an incomplete list of assets can derail the agreement.

In California, both parties are legally required to disclose all assets and debts, whether separate or community. Omitting a pension, business interest, or even a jointly held credit card can lead to legal complications. The court may reopen the case if it discovers hidden or undisclosed property later on.

To avoid this, both parties should provide full and honest financial disclosures early in the process. Working with legal and financial professionals can help ensure nothing is missed.

Using Vague or Ambiguous Language

The language used in an MSA must be specific. Vague terms like “reasonable visitation” or “equitable distribution” may seem flexible, but they often lead to future disputes.

For example, instead of saying that one parent will have “liberal parenting time,” the agreement should include specific days, times, and conditions for visitation. Similarly, property division should clearly outline who receives which asset, and whether it will be transferred, sold, or divided.

Precise language helps both parties understand their rights and obligations. It also gives the court a clear framework to enforce if problems arise.

Failing to Address Future Changes

Divorce doesn’t always end the relationship—especially when children or long-term financial ties like spousal support are involved. Agreements that don’t include provisions for possible future changes can become outdated quickly.

It’s wise to include clauses that address potential changes in circumstances, especially for child custody, visitation, and support. For instance, what happens if one parent wants to move out of state? Or if one party loses their job? Including language that explains how modifications will be handled can save both parties time and legal fees later.

Not Following California Community Property Rules

California is a community property state. This means that, with few exceptions, any assets or debts acquired during the marriage must be split equally. One of the biggest errors people make is assuming they can divide property however they see fit without understanding these rules.

While spouses can agree to an unequal division if both consent, the court may question an agreement that appears unfair or imbalanced—especially if one party didn’t have legal representation. Agreements that ignore community property laws risk being rejected by the court.

It’s important to have an attorney review the agreement to ensure it aligns with California law and is likely to be accepted.

Overlooking Retirement Accounts and Tax Issues

Retirement accounts are frequently mishandled in MSAs. Dividing them correctly often requires a separate legal document called a Qualified Domestic Relations Order (QDRO). Without a QDRO, the account may not be divided legally, and the spouse expecting a share could lose out.

Taxes are another area that’s often neglected. Some assets, like a Roth IRA or a home with a large capital gain, can carry significant tax consequences. If these aren’t factored into the agreement, one spouse may end up shouldering more tax liability than expected.

A thorough review with a tax professional can help both parties understand the long-term financial effects of the settlement.

Ignoring Spousal Support Details

Spousal support (also known as alimony) can be one of the more contentious areas in a divorce. Some MSAs state a flat monthly amount but leave out important details, like how long payments will last or under what conditions they can be changed or terminated.

The agreement should spell out whether support is temporary or permanent, what events might trigger a modification (such as remarriage), and whether the court can review it in the future. If the parties want the amount to be non-modifiable, that must be clearly stated.

An unclear or incomplete support clause can create major disagreements, sometimes years after the divorce.

Skipping Legal Review

Perhaps the most dangerous mistake is trying to draft an MSA without legal help. Online templates or DIY agreements may seem like a cost-saving option, but they often fail to address the nuances of California law. Worse, they might include terms that are unenforceable or leave out key legal protections.

Even in an amicable divorce, each party should have their own attorney review the agreement. This ensures that both individuals understand their rights and that the document will hold up in court. A flawed agreement can end up costing far more in future litigation than the upfront legal fees.

Not Considering Enforcement

An MSA isn’t just a set of informal promises—it’s a binding legal contract. But if it’s poorly drafted or lacks clarity, enforcing it can be difficult. Agreements should include practical terms for enforcing child support, spousal support, or property transfer.

In addition, any child-related terms must prioritize the best interests of the child. If the court finds that a custody or visitation clause fails to meet that standard, it may reject it entirely.

Including enforcement language and aligning with California legal standards from the beginning helps reduce conflict later.

Conclusion

A well-drafted marital settlement agreement can bring clarity and closure to a difficult chapter. But mistakes made during the drafting process can lead to legal disputes, financial loss, and emotional strain.

Being transparent, using precise language, accounting for future changes, and complying with California law are key to creating a strong agreement. Most importantly, both spouses should work with legal professionals who understand the process and can protect their interests.

A solid MSA doesn’t just finalize a divorce—it lays the groundwork for a more stable future. Avoiding these common errors is the first step toward getting there.