Divorce can be a complex and emotionally draining process, particularly when it comes to dividing assets and liabilities. One way to streamline the divorce process is through a divorce settlement agreement. A divorce settlement agreement is a legally binding document that outlines the terms of a divorce and covers issues such as property division, spousal support, child custody, and child support. By creating a comprehensive divorce settlement agreement, both parties can avoid the time, expense, and uncertainty of going to court. In this article, Eastcoastlaws.com will explore what a divorce settlement agreement is, why it is important, and what key components should be included in the agreement. We will also discuss how to negotiate and finalize a settlement agreement, and the role of attorneys and mediators in the process. By understanding the benefits of a divorce settlement agreement and the factors involved in creating one, you can make informed decisions and achieve a more peaceful and amicable divorce.
Depending on where you live, a divorce settlement agreement is a written contract with several names. Any of the following names can be used to describe it:
- Divorce Settlement Agreement
- Separation Agreement or Separation and Property Settlement Agreement
- Custody, Support, and Property Agreement
- Mediated Separation Agreement
- Collaborative Settlement Agreement
- Property Settlement Agreement (PSA), and
- Marital Settlement Agreement (MSA).
It doesn’t really matter what you label it. A divorce settlement agreement serves as a legal record of any agreements struck between divorcing (or separated) spouses on property division, alimony (also known as “spousal support,” “maintenance,” and child custody). We’ll refer to it as a “Divorce Agreement” or simply “an Agreement” for the duration of this article.
Do We Need to Enter Into an Agreement Before We Separate?
No. Before or after you separate or file for divorce, you are permitted to engage in a divorce settlement agreement. You might also be unable to come to an agreement until “on the courtroom steps,” as the term goes, the morning of your divorce trial. Yet, if you want to save unneeded stress and legal costs, the sooner you resolve your case, the better.
Entering into a separation agreement can provide a number of benefits. For one thing, it can help to ensure that both parties are on the same page regarding the terms of the separation. This can help to reduce conflict and make the process of separation smoother and less stressful. It can also help to provide clarity and certainty regarding financial matters and child custody arrangements.
Another benefit of entering into a separation agreement is that it can help to protect each party’s rights and interests. Without an agreement, there may be uncertainty regarding how property will be divided or how child custody arrangements will be made. This can lead to disputes and potentially costly and time-consuming legal battles.
It is worth noting that entering into a separation agreement is not always a straightforward process. It can involve negotiations and compromises on both sides, and it may be necessary to seek legal advice to ensure that the agreement is fair and equitable.
Do I Need an Attorney to Prepare the Divorce Agreement?
While it is possible to prepare a divorce agreement without the assistance of an attorney, it is generally advisable to hire a lawyer to ensure that your rights and interests are protected.
A divorce agreement is a legally binding contract that outlines the terms of the divorce. It can cover a range of issues, including the division of property and debts, spousal support, child custody, access, and any other relevant matters. The agreement is typically negotiated between the parties and their attorneys, and it must be approved by a judge before it can become final.
One reason to hire an attorney to prepare the divorce agreement is that divorce law is complex and constantly evolving. An experienced attorney can help you navigate the legal process and ensure that your rights and interests are protected. They can also help you understand your legal options and negotiate a fair and equitable agreement with your spouse.
Another reason to hire an attorney is that they can help you avoid costly mistakes. Divorce agreements can be complicated, and it can be easy to overlook important details or make mistakes that could impact your rights and interests. An attorney can review the agreement to ensure that it is fair and equitable and that it includes all of the necessary provisions.
Finally, hiring an attorney can help you save time and stress. Divorce can be a difficult and emotional process, and it can be challenging to navigate without the assistance of an experienced attorney. By hiring an attorney, you can focus on the emotional aspects of the divorce while they handle the legal details. While it is possible to prepare a divorce agreement without the assistance of an attorney, it is generally advisable to hire one. An experienced attorney can help you navigate the legal process, protect your rights and interests, and avoid costly mistakes. If you are considering divorce, it is important to seek legal advice to ensure that your interests are protected.
What If We Settle Everything Before Going to Court?
An attorney or mediator can draft an agreement if you decide to settle everything before going to court in your divorce case. The Divorce Agreement becomes a legally enforceable contract once it is signed, and both spouses are required to abide by its conditions. The agreement could be presented before a judge to ensure that the terms are reasonable, depending on the legal requirements of your state. If any of you later violates the order, you could be found in contempt of court. At that point, it will be included in your final divorce decree and become an enforceable court order.
If you and your spouse are unable to come to an agreement, you’ll most likely wind up in court where you’ll have to present your case and request that the judge make all decisions for you. In order to avoid the unpredictability and high costs of this process, it is advisable to reach a settlement outside of court.
What If I Don’t Like My Spouse’s Proposed Divorce Agreement?
Avoid signing it. Keep in mind that it is only a proposal and the beginning of the negotiation. You are under no need to react, even if your spouse (or your spouse’s attorney) assigned you a deadline. The suggestion is yours to toss in the garbage if you choose. You cannot be pressured to settle before you’re ready. It is possible to wait too long, too. Your spouse may become irate and may end the settlement negotiations altogether if you fail to negotiate in good faith or if you refuse to sign anything because you want to continue taking advantage of their kindness as long as possible. You must be prepared to advance and compromise if you truly want to settle.
As was previously mentioned, it is advisable to have a lawyer analyze your spouse’s proposed divorce agreement. If you don’t like it, a lawyer can represent you in the negotiations and assist you to gauge how far apart you are from one another.
If I Like My Spouse’s Proposed Divorce Agreement, Should I Just Sign It?
No. Even if you are absolutely ready to proceed with a settlement and your spouse’s lawyer wrote the initial draft, it is imperative that you at the very least have your own attorney, who is looking out for your interests, examine the agreement. No matter how much pressure is put on you to sign, and despite your desire to “keep it simple” and avoid “getting all the attorneys involved,” you should go with this. It’s crucial to keep in mind that your spouse’s lawyer does not advocate for you and is not concerned with whether the terms of the agreement are reasonable or give you enough financial support.
If My Spouse and I Agree, Can We Write Our Own Agreement?
Typically, this is a bad idea. Most likely, the agreement won’t be clear about the rules of your state and could leave out crucial legal clauses. It could be hazy or ambiguous. If this is the case, and you and your spouse later dispute a clause, you can find yourself paying extra money to lawyers in an effort to modify or explain the clause. A few hours of an attorney’s effort are usually worth it to create a solid agreement.
If My Spouse and I Agree on Everything, Can We Just Hire One Attorney to Draft Our Divorce Agreement?
Although it is possible, it is not advised. First off, one lawyer is unable to represent both partners. Hence, if you proceed without legal representation, no one will be watching out for your interests. If your spouse moves through without counsel, he or she might subsequently be able to argue that the terms of the agreement are unjust or that they weren’t fully informed because counsel wasn’t present.
Your best option is to take part in divorce mediation, which is a procedure involving a neutral, third-party mediator if you and your spouse are actually in agreement on all matters pertaining to your divorce (usually a family law attorney trained in mediation). The mediator assists both partners in formulating and concluding an agreement. The divorce agreement is frequently drafted by the mediator, after which the spouses might each request that their respective reviewing attorneys give it another go.
What If We Both Decide Not to Follow the Divorce Agreement We Signed?
You won’t be arrested, and the world won’t stop turning. For instance, it’s entirely up to you whether you and your husband decide to adhere to two different alimony payment schedules. Be extremely clear, though. You each have the right to enforce the terms of the original divorce agreement if you choose to act in a manner that differs from what you expressly agreed to do in writing and later have a falling out with your ex-spouse. Regardless of any formal agreement to the contrary, this is true.
You should modify (update) the original divorce agreement in writing if you and your spouse decide to alter some of the more important provisions.
Can We Modify (Change) Our Divorce Agreement?
Yes. Unless you both agree to a change, provisions affecting the property, debt, and nearly all other financial problems are typically regarded as set in stone. If this is the case, you can sign a “Modification Agreement” to record the modifications that were reached. The new court order should then include this revised Divorce Agreement.
As long as you can demonstrate that a material change in circumstances happened after the entry of the original order and/or that a new arrangement is in the child’s best interests, child support, custody, and visitation agreements may be modified. Depending on how the alimony provisions were written in your initial divorce agreement, they may or may not be subject to modification. In your original agreement, make sure it is very clear whether any spousal support obligations are adjustable or not.
Child Custody and Child Support
Every divorce settlement deal including children under 18 is inherently considerably more complicated. The best interests of your child are taken into account at the outset of every state’s consideration of parental rights. The other spouse may have a strong case for asking for full custody and high child support if one spouse has been abusive or neglectful.
Also, courts favor 50/50 shared parenting obligations because they believe it is in the child’s best interests to have positive interactions with both parents. You must choose between the following options when creating your own agreement:
- Where will your children live?
- Who will make decisions about your child’s education, religion, and healthcare?
- How many nights will they spend at each parent’s house?
- How will you share holidays and vacations?
- Who will pay child care, healthcare, and health insurance costs?
- Who will pay for school and extracurricular expenses?
- Will one spouse provide child support payments to the other?
These queries need to be addressed in any divorce settlement agreement. Even if you might desire to battle for complete possession of your child, think about what would be best for them.