A marital separation agreement also known as a divorce settlement agreement is a written document that goes by many names, depending on where you live. Therefore, it is useful to check your local state to figure out the general procedures of how to file one.
The purpose of a divorce settlement agreement is to come to an agreement on terms regarding child custody, child support, alimony (also referred to as “spousal support” or “maintenance”), and the division of property.
Do I Need an Attorney to Prepare the Separation Agreement?
It is recommended that you hire a lawyer to prepare your marital agreement. If your spouse’s attorney has already drafted it, you should hire an attorney to review it (on your behalf) and make sure important legal provisions are added, deleted, or corrected in order to protect your rights and interests.
For example, phrases like “sole legal custody,” “exclusive possession,” “timely indemnify and hold harmless,” and “relinquish and waive all future claims” have significant meanings. If you are not a legal expert in the area, you may miss those crucial details or problems with the proposed agreement.
Additionally, you may not know how to incorporate specific words to protect your interests. If you fail to review something, you may end up losing on the important aspects of the agreement. For due diligence purposes, you need to make sure a lawyer is able to assist with the process.
What if We Settle Everything Before Going to Court?
If you settle everything before taking your divorce case to court, an attorney or mediator can draft an agreement. Once signed, the selection agreement becomes a binding contract, which means both spouses are obligated by law to follow through by its provisions. Depending on your state’s laws, the agreement can be submitted to a judge that will make the determination if the terms are fair. It will then be incorporated into your final divorce decree and become a binding court order.
However, if either of you violate the order later on, you could be held in contempt of a court. If you and your spouse cannot agree, with a high probability you will end up in court, where you will have to put on your case and request a judge to decide all issues for you. Because this process is unpredictable, and usually costly, reaching an agreement outside of court is the recommended method.
What Should I Do in Regards to the Proposed Separation Agreement?
As with any contract, it is crucial to carefully examine it and understand the terms. It is important to keep in mind that it is still a proposal, the beginning process in the negotiation. Furthermore, you do not need to be intimidated by a deadline provided to you by your ex- spouse or their attorney. No one can demand you to settle until you are ready.
Therefore, if you need more time you can either communicate this to your spouse or request their attorney to do so. Generally, it is beneficial for you to act in good faith regarding the agreement. As stated above, it is advised to ask an attorney to review your spouse’s proposed separation agreement. If you disapprove of some of the terms, an attorney can help you understand how far apart you are, and negotiate a better deal on your behalf.
If I Like My Spouse’s Proposed Divorce Agreement, Should I Just Sign it?
Even if you are ready to move forward with a settlement and if your spouse’s attorney prepared the first draft, it is important that you at least have the agreement reviewed by your own attorney.
Completing this step is necessary to prevent any pressure placed on you to sign and no matter how much you want to “keep it simple.” It is important to understand that your spouse’s attorney does not represent you and does not prioritize whether the agreement is fair or if it provides you with adequate financial resources.
What is the Path Forward if Both Parties are in Agreement in terms of the Separation Agreement?
Most likely, the agreement will not be specific as to your state’s laws and may miss important legal provisions. States differ on the rules when it pertains to marital separation agreement. Therefore, it is critical that you discuss this earlier on to avoid any vagueness or confusion in the agreement terms. In some cases, you and your spouse may disagree on a provision. It is important to keep in mind that you can have an open communication in regards to trying to incorporate the both parties’ wishes.
For instance, if your spouse and you have an agreement on the terms, then some couples decide to obtain only one attorney. You could do this, but it is not recommended. First of all, one attorney cannot represent both spouses because of the sensitive nature of the marital issues. If for some reason you decide to proceed without an attorney, you will not have anyone looking out for your interests and you can miss out on the clear understanding of your rights.
Additionally, if you and your spouse proceed without an attorney, he or she may be able to claim later that the agreement is unfair, or that they were not aware of what they were signing because they did not have an attorney involved.
If you and your spouse do agree on all issues in your divorce, your best option is to participate in divorce mediation, which is a process involving a neutral, third-party mediator. It is typically a family law attorney trained in mediation. The mediator works with both spouses to assist them in forming and finalizing an agreement. Sometimes, the mediator will draft the marital separation agreement and then the spouses can request their individual reviewing attorneys to take a second look.
What if We Both Decide not to Follow the Divorce Agreement We Signed?
If for some reason you and your spouse both decide to follow a different alimony payment schedule, that is your decision to do. There is no mandatory requirement to follow the agreement that was signed. However, if you decide to do anything other than what you agreed to do in writing, and then have a disagreement with your ex-spouse, you each have the right to enforce the terms of the original Separation Agreement.
This is true regardless of any verbal agreement to do otherwise. If you both decide to modify some of the more substantial terms of your original separation agreement, you should make it official by altering the old agreement in writing.
Can We Modify our Agreement?
There is a way to modify your agreement. Provisions regarding property, debt, and almost all other financial matters are usually considered the final decision, unless you both agree to a change. If so, you can enter into a “Modification Agreement,” inserting the agreed-upon changes. This modified agreement should then be incorporated into a new court order.
Child support, custody, and visitation agreements are modifiable as long as you can show a drastic change in circumstances occurred after entry of the original order, and or that a new arrangement is in the best interests of the child. Alimony provisions may or may not be modifiable, depending upon the wording of your original separation agreement. Keep in mind that the terms of your original agreement are easy to follow in regards to whether any spousal support obligation will be modifiable, or non-modifiable.
When Do I Need to Contact a Lawyer?
If you are contemplating a marital separation it will be a lengthy process to decide on the issue that will arise as a result of it. It is recommended to reach out to your local family lawyer to draft an agreement ahead of time to avoid the extra hassles and delays.