A divorce is a legal proceeding which terminates a marriage between two spouses. Once a divorce is final, the parties are able to remarry if they choose to do so.
Each state in the United States requires the individual who files for divorce to be a resident of that state. Residency requirements may vary, but typically require the individual to reside in the state between 6 months to 1 year.
There are two types of divorces, the availability of which varies by state. These are fault divorce and no fault divorces.
Every state has its own procedure for divorce proceedings. Most states have adopted the no fault divorce process. However, some maintain a fault divorce system.
In a no fault divorce system, the parties are not required to prove there was any wrongdoing or fault on the part of either spouse in order to obtain a divorce. In some states, the spouses must declare in their pleadings that they are no longer able to get along. In other states, the parties are required to reside separately for a certain required period of time, which may be months or years, prior to filing for a no fault divorce.
A fault divorce requires the party that is filing for the divorce to provide a reason why the divorce should be granted. The fault rules or justifications that are accepted vary by state. However, common reasons include:
- Cruelty, or the infliction of unnecessary or emotional pain;
- Adultery;
- Desertion for a specific period of time;
- Incarceration for a specified number of years; or
- Physical inability to consummate the marriage.
What is a Divorce Settlement Agreement?
A divorce settlement agreement is a contract between the spouses which outlines the rights and obligations of each party following their divorce. This agreement allows the parties to settle any issues related to the divorce outside of a courtroom. This type of agreement is typically used in uncontested divorces.
A divorce settlement agreement is also known as a marital settlement agreement. This agreement will be finalized into the divorce order once the proceedings are finalized.
It is important to note that this type of settlement agreement can be used in both divorce and legal separation proceedings.
What Does the Settlement Agreement Include?
Legal issues which are typically addressed in divorce settlement agreements include:
- Division of marital property and assets;
- Mortgage payments on any property that is shared;
- Alimony or spousal support;
- Allocation of any shared business assets;
- Division of any marital debts;
- Child custody;
- Child visitation rights; and
- Child support.
What are Some Advantage of Marital Settlement Agreements?
There are several advantages to marital settlement agreements. One of the main advantages is that the agreement may prevent ongoing issues that may arise following the divorce.
In most cases, the individuals did not get married imagining they would later be in a court battle over their divorce. However, if it does occur, there are many issues which usually arise, including:
- Property division;
- Debt responsibilities;
- Debt division;
- Child custody; and
- Future plans for any children.
Although divorce agreements are not required, some of their advantages include:
- The agreement becomes in writing and it discusses all the issues that might arise to the divorce, therefore limiting uncertainty;
- The divorce will be finalized sooner since the issues are already addressed in an agreement;
- In some cases, the spouses may not even have to go to court and the court can decide the case by simply approving the agreement already made; and
- All major issues related to a divorce are already decided and it is not necessary to attend a mediation or a trial.
Is a Divorce Agreement the Same as a Separation Agreement?
No, a divorce agreement is not the same thing as a legal separation agreement, although they may cover some of the same issues. A legal separation agreement is used when a couple is still married but want to live separately or are contemplating a divorce.
A legal separation agreement is used to provide a temporary solution to an immediate problem that separated couples may face. This may include things such as who will live in the marital home and who will have the primary custody of children, if there are any.
Is a Marital Settlement Agreement the Same as a Prenuptial Agreement?
No, a marital settlement agreement is not the same as a prenuptial agreement. Prenuptial agreements, also called prenups, may cover similar issues to marital settlement agreements.
The prenuptial agreement, however, is entered into prior to the individuals getting married. This document outlines the rights and obligations of each party should they divorce in the future. It may include:
- Spousal payments;
- Division of property;
- Child support payments; and
- Other issues.
Marital settlement agreements are usually more specific, since the parties know which issues they need to address. This is in contrast to a prenuptial agreement, in which there may be speculation and issues may be addressed which do not actually occur in the marriage.
Do I Have to Have a Divorce Agreement?
No, divorce agreements are not legally required. However, it is always a good idea to have a divorce agreement, if possible, because it reduces the number of issues the court will have to determine for the parties. An agreement is also helpful because it can be enforced if a spouse does not comply.
In addition, a divorce agreement may allow the parties to settle their divorce much faster than processing every issue through the court system. It may also save the parties money because they would avoid additional court proceedings and attorney’s fees.
What if We Can Only Agree on Some Issues?
It is perfectly acceptable if the parties are only able to agree on some issues. An agreement wherein only part of the issues are decided is called a partial divorce settlement.
A partial divorce settlement would only include those issues which the parties have agreed upon. Any other issues will be resolved during the divorce trial.
Can a Marital Settlement Agreement be Changed?
Yes, in certain cases, a marital settlement agreement can be changed, especially if there are issues regarding child visitation, which change as the child ages. In addition, it may be determined that fraud or deception occurred on the part of one party when negotiating the agreement.
For example, one spouse may have hidden assets from the other in an attempt to pay less alimony. If this is discovered at a later time by the court, the marital settlement agreement may be rewritten or changed to reflect any new information.
Will the Court Automatically Approve Our Agreement?
In most cases, so long as the parties have agreed to fair terms, the court will most likely approve the agreement. A court is typically reluctant to interfere with divorce settlement agreements unless one of the following occurs:
- One spouse claims the settlement was not entered into voluntarily;
- One spouse does not understand their rights regarding property distribution;
- One spouse is giving up a lot of assets without receiving anything in return;
- The custodial parent accepts significantly reduced child support or waives their right to it; or
- One spouse gives up their right to the other spouse’s retirement accounts.
Should I Contact a Divorce Lawyer to Help Me Negotiate a Divorce Settlement Agreement?
It is essential to have the assistance of a divorce lawyer during any portion of your divorce proceedings. Your lawyer will help you negotiate any type of settlement agreement and help ensure the agreement is fair and likely to be approved by the court.
