Before getting a final decree of divorce, divorcing couples should first map out the fine points of what will govern the future relationship with their former spouse. Unfortunately, the emotionally demanding nature of this process can leave one or both spouses vulnerable to costly omissions, allowing important issues to potentially slip under the radar. To help put things into focus, our divorce settlement agreement template is a comprehensive catalog of crucial considerations to help ensure that your post-divorce needs are met.
When couples are going through a divorce, often the only certainty is that at least one of the parties feels that the marriage has outlived its purpose. The couple will need to resolve a lot of uncertainties relating to property, marital assets, debts, child custody, and more. In one example, if one or both spouses own certain intangible assets, such as trademarks, they may need to include a trademark assignment agreement to transfer ownership of the trademark.
To amicably settle these matters, spouses can create and sign a written divorce settlement agreement that lays out the terms of their newly separated lives. This document is a legally binding agreement that details how the former spouses will separate their lives and move forward as individuals. This agreement covers everything from property division to child custody. A divorce settlement agreement for divorce can be known by different names depending on the location or method with which it is formed, including:
Separation and Property Settlement Agreement (PSA)
Custody, Support, and Property Agreement
Mediated Separation Agreement
Marital Settlement Agreement (MSA)
Collaborative Settlement Agreement
Divorce settlement agreement (DSA)
Regardless of the name, the point of a divorce settlement agreement is for the spouses to agree on the terms of their divorce. If the spouses can agree, whether independently or with help from attorneys or a mediator, the divorce case will not need to go to trial. If the spouses cannot agree, the decision of who gets what assets, debts, and even children will be made by the judge.
A well-considered settlement gives the judge the impression that the spouses, despite the intended split, have diligently and carefully considered the implications of all the issues. After both parties have signed the divorce settlement agreement, they still need the judge’s approval to make it binding and enforceable. The document is filed with the court and made part of the divorce judgment, otherwise known as the divorce decree.
A distinction must be made between the terms “divorce” and “separation.” Separation occurs before a divorce. Though many couples choose to separate for a time before deciding to go through with a divorce, many states require spouses to live separately or follow specific rules regarding their living arrangements for a minimum amount of time for a divorce to be considered valid under state law.
Two parties are required to form a valid marriage. Therefore, it follows that two parties must reach a divorce settlement agreement to dissolve a marriage amicably, namely:
Most experts suggest that each spouse should have his or her lawyer review the agreement. Having their own legal advisors can help them more fully understand what it really means to sign the agreement. Both spouses should understand the legal, financial, and emotional implications before signing the document.
Some key terms that are likely to be in a divorce settlement agreement include:
A divorce settlement agreement is a comprehensive structured framework to help resolve post-divorce matters that can include the division of property and assets, spousal support, child custody, visitation schedules, and child support. Since terms of the divorce settlement agreement are mutually agreed upon and legally binding, it lowers the likelihood of conflicts and uncertainties, which can make post-divorce life easier for the former spouses.
The divorce settlement agreement is also a tool for avoiding protracted litigation. It allows the parties to maintain control over the outcomes and safeguard individual rights while facilitating an amicable resolution that yields the best outcome. A divorce settlement agreement template that is broad in its scope is incredibly useful in covering an extremely wide range of post-divorce issues.
To draft a comprehensive divorce settlement agreement, include the key aspects of the dissolution of a marriage. Minimally, these should include:
Division of assets and liabilities
Child custody and visitation arrangements
Child and spousal support details
Allocation of retirement and pension accounts
Healthcare and insurance provisions
Division or transfer of any real estate properties
Dispute resolution methods
Process for modifying the agreement in the future if circumstances change
Covering all of these aspects can be difficult, but a divorce settlement agreement template can help make this process quick and easy.
Putting together a divorce settlement agreement requires more than just writing skills. It often requires not only attention to detail but also negotiation, mediation, and conciliation skills. The process of creating a divorce agreement involves the following three main steps.
Any divorce settlement agreement begins with a willingness of the parties to reach an amicable settlement. Each spouse must at least agree to negotiate and attempt to reach reasonable compromises with the other spouse.
The spouses must communicate in order to agree to the essential terms of the divorce settlement agreement. These essential terms were listed above and include division of assets and care and custody of the couple’s minor children.
After negotiating, the spouses will need to document the agreed terms in the divorce settlement agreement. Once the document is signed and accepted by the court, these terms will be binding and enforceable as part of the divorce decree.
Couples use divorce settlement agreements in no-fault divorces. This is when neither spouse formally blames the other for the failure of the marriage. In these cases, the DSA outlines the who-gets-what for the property, alimony, child custody, support arrangements, and other financial and logistical issues.
Ultimately, the divorce settlement agreement provides a predictable structure for spouses looking to avoid future conflicts that are likely to be toxic for their children. It also helps them enjoy cordial post-divorce relations.
Some of the most common reasons a couple will choose to negotiate a divorce settlement agreement include:
A divorce settlement agreement may not be the best option if the settlement talks break down due to unreasonable demands from an unyielding spouse. If you have valid concerns about whether your spouse will abide by the agreed terms, taking the divorce to trial might be a better option. Going to trial might also be better if your divorce involves complex financial issues like business ownership or debts.
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When couples separate, they are likely at odds with each other. Being constantly embroiled in everyday disputes can hamper your chances of reaching an amicable settlement. Therefore, the more natural order of events is for couples to first separate and subsequently iron out the details of their divorce settlement agreement. With that being said, a couple remains free to enter into a settlement at any point in the divorce process.
With divorce settlement agreement templates available online, spouses can easily agree to a settlement. However, the couple may want to consult with a lawyer (together) or lawyers (separately) to help ensure that the document addresses all important matters according to state law.
The self-oriented nature of a divorce means that each spouse is likely to put his or her interests before the other’s and, possibly, even the children’s. Therefore, it may be helpful to have an attorney draft the agreement or review a divorce settlement agreement that the couple prepared from a template or that one spouse’s attorney prepared.
During settlement proceedings, the terms in a divorce settlement agreement can be difficult for many people to understand. Phrases like “sole legal custody,” “exclusive possession,” “timely indemnify and hold harmless,” and “relinquish and waive all future claims” may need careful explanation if they are to be included in a divorce settlement agreement. A lawyer who is experienced in family law can help to clarify the legalese, allowing each spouse to feel more confident about what he or she is signing.
If a couple can settle all matters together or through their legal representation, then their divorce will not have to go to trial. After each spouse agrees, a lawyer or mediator can draw up the divorce settlement agreement for signing.
Once signed, the document becomes a binding contract between the former spouses. In compliance with state law, the judge may review the divorce settlement agreement to ensure that the terms are fair for both the spouses and their children. Once approved, the agreement becomes part of the divorce judgment. Failure of a former spouse to comply with the terms can cause him or her to be found in contempt of court.
If both spouses agree on the terms, they may be able to draft their own document or use a divorce settlement agreement template. Even when drafting an agreement or customizing a template, divorcing spouses may want to consult with local divorce attorneys for help ensuring that all the terms are clear and avoid the following:
If your former spouse violates the terms of the agreement, you can file a motion for contempt of court to enforce your divorce settlement agreement. When a violation causes financial harm, you can also file a civil claim for compensation. However, you will be required to prove the harm and the damage suffered.
When your divorce settlement agreement becomes part of your divorce judgment, you can make changes later subject to a judge’s approval, state laws, and the terms of the agreement itself. Judges only allow changes if there has been a shift in the life of a former spouse that may render him or her unable to fulfill the obligations under the divorce settlement agreement.
A motion to modify the terms may be in order if a change in one or both spouses’ circumstances means that the divorce agreement is no longer fair. A good example would be a loss of income that limits a former spouse from paying child support in full or a change in work schedule that causes an inability to adhere to the agreed visitation times.
If you don’t agree with any part of a proposed divorce settlement agreement, don’t sign the document. Unfortunately, some spouses may resort to tactics like gaslighting, tight response deadlines, and emotional blackmail to compel their spouse to sign unfavorable terms. Don’t let these tricks keep you from carefully considering every issue.
When heading into negotiations, be sure to show good faith. Attempt to discuss each issue calmly until both spouses can come to an agreement or an amicable compromise.
Divorcing spouses looking to cut costs may want to read over a sample for a divorce settlement agreement on Lawrina to use as a guide for the issues that need to be decided. Even if they agree, many couples may still choose to seek legal support from an experienced family law attorney before moving forward. Either way, it is important to accurately gauge how well the divorce settlement agreement will protect the interest of each party and, if necessary, negotiate better terms.