A Rose by Any Other Name

By 

Charles F. Vuotto, Jr., Esq.
Editor-in-Chief

 What do we call the agreements by which we resolve all issues in a divorce case? Are these agreements referred to as a “Property Settlement Agreement” (PSA), “Marital (or Matrimonial) Settlement Agreement” (MSA), “Divorce Settlement Agreement” (DSA), “Family Dissolution Agreement” (FDA) or some other name? Although we know that the days of referring to such an agreement as a “PSA” are in the past, there was a reason why such agreements were originally referred to as a PSA.  The first reported reference to a “Property Settlement Agreement” in the context of a divorce case appears to be in 1953 when it was referred to as a “Separation and Property Settlement Agreement.”[i]  The relevance of the nature of the agreement (and thereby the importance of what it is called) arose about 27 years later in the context of a case where the court was called upon to examine when the marriage terminates so as to place after acquired property beyond its reach.[ii]  Since then, there have been hundreds of reported cases citing to the phrase “Property Settlement Agreement” in the context of divorce. 

Most practitioners would agree that the use of the traditional label “Property Settlement Agreement” is no longer viable, just as we generally no longer use the term “visitation” in the context of a non-custodial parent’s parenting time with his or her child.   There are many other issues addressed in divorce agreements beyond property division such as custody, time sharing, child support and alimony. Therefore, “Property Settlement Agreement” is a misnomer.   However, there is no consistency among practitioners as to what a divorce agreement should be named.

Although I do not believe that there should be an iron clad rule, I do believe it makes sense for there to be consistency among matrimonial practitioners and courts as to how we generally refer to such agreements in the contest of a typical divorce case.  For instance, such a name would not apply in the dissolution of Civil Unions or Domestic Partnerships.

The results of a recent survey of the New Jersey State Bar’s Family Law Section show a general consensus that the phrase “Marital Settlement Agreement” (MSA) is preferred by the majority (22.1%) of the 299 practitioners responding.  However, a close second (20.7%) responded that there should be no uniform label for such agreements.  The full results of this survey are found in the following chart:

SURVEY RESULTS

                         Response                               Response

                         Percent                                  Count                                                                                                                   

Property Settlement Agreement (PSA)                        14.0%                                     42

Marital Settlement Agreement (MSA)                           22.1%                                           66

Matrimonial Settlement Agreement (MSA)                    11.4%                                    34

Divorce Settlement Agreements (DSA)                          7.7%                                    23

Family Dissolution Agreement (FDA)                            10.0%                                    30

Domestic Settlement Agreement (DSA)                       14.0%                                    42

There should be no uniform label                                20.7%                                    62

Answered question                                                          299

Skipped question                                                                  0

I agree with the majority and do use “Marital Settlement Agreement” (MSA) in my cases, as appropriate.  The goal of this column, however, is not to argue for or against any particular label, but to spark a discussion among the practitioners as to whether we should adopt a uniform name for our dissolution agreements and, if so, what it should be.

Charles F. Vuotto, Jr., Esq. is the Editor-in-Chief of the New Jersey Family Lawyer and a partner in the Matawan based law firm of Tonneman, Vuotto & Enis, LLC.