In some divorce proceedings, the parties are able to work out the terms of the divorce in a cooperative manner. They may finalize the various terms in what is called a "marital settlement agreement." This will be finalized into a court divorce order once the proceedings are wrapped up.

A marital settlement agreement may address various legal issues such as:

  • Child custody, visitation rights, and child support
  • Alimony or spousal support
  • Marital property and distribution of assets between the parties
  • Allocation of shared business assets

Marital settlement agreements may be used in both divorce and legal separation proceedings, as the process is often very similar for both.

Is a Marital Settlement Agreement Required?

No. A marital settlement agreement is never required, but it is recommended since it would settle a divorce much quicker. The sooner a divorce case is settled, the less costly the divorce would be since you would avoid any unnecessary court proceedings and attorney fee’s.

Is a Marital Settlement Agreement the Same as a Prenuptial Agreement?

No- prenuptial agreements are generally created and signed before the couple is married. Prenuptual agreements (prenups) may cover similar terms as a marital settlement agreement. The difference is that these issues are worked out before the couple is even married, in the event that the couple gets divorced or legally separated in the future. For instance, both types of agreements may address spousal payments, child support, and other issues.

Marital settlement agreements tend to be more specific, since the parties will know more clearly which legal needs they must address. In comparison, there can be some speculation and uncertainty with a prenuptial agreement, since they may be addressing factors that haven’t occurred or developed yet.

Can a Marital Settlement Agreement be Changed?

In some cases, marital settlement agreements can be adjusted in the future, especially for issues like child visitation, which can fluctuate over time. Also, it can sometimes happen that fraud or deception was used by one party when coming up with a settlement agreement.

For instance, suppose one parties hides assets from the other in attempts to pay less alimony. If this fact is discovered later on by the court, it may lead to a changing or rewriting of the marital settlement agreement to reflect the new information.

What Are the Advantage of Marital Settlement Agreements?

A marital settlement agreement has many advantages because it prevents ongoing issues that could arise after a divorce. During a marriage, a married couple would never think to believe that they would be in a court battle or involved in a marital litigation. However, when the time does come around and the couple is on the course of getting a divorce, issues and disputes over child plans, child custody, property division, debt responsibility and division always arise.

While an agreement is not required, a marital settlement agreement has advantages such as:

  • The agreement becomes in writing and it discusses all the issues that might arise to the divorce, which limits uncertainty.
  • The divorce proceedings would finish sooner since everything is already laid out in an agreement
  • The spouses might not even have to go to court and the judge can decide the case by simply reading the agreement already made.
  • All major issues related to a divorce would have already been decided and the use of mediation or trial is not necessary

When Can Marital Settlement Agreements Be Made or Entered Into?

A marital settlement agreement may be created and entered into anytime before a final judgment for divorce has been decided by the court. The marital settlement agreement is usually filed with the final judgment. You may also enter into a marital settlement agreement before or after you file for a divorce as long as it’s made before a final judgment is made.

How Can My Spouse and I Create a Marital Settlement Agreement?

Creating a marital settlement agreement is somewhat straightforward. A settlement agreement is a marital relationship is basically like a negotiation for a contract between two parties. Even though the spouses are both married, they should realize that they are different parties in a divorce litigation. Even if both you and your spouse agree on all the terms of the agreement and are ready to sign the agreement, it is important that both spouses have the agreement reviewed by their own attorneys. Both attorneys should review the agreement before each spouse sign them because the agreement might not be within the state’s laws or the language of the terms might be vague and unclear which would not uphold in court.

Also, remember that one attorney cannot represent both spouses in a divorce which is why each spouse should have their own attorney to review the agreement. You can also agree a neutral mediator work with both spouses to draft the agreement.

Should I Hire a Lawyer for Help with a Marital Settlement Agreement?

In any divorce or legal separation proceeding, both sides are generally represented by lawyers. You may need to hire a divorce lawyer if you need assistance with a marital settlement agreement or if you have any other specific family law issues. Your attorney can provide you with the legal representation that is needed during the proceedings, and can provide you with valuable legal advice for your situation.