Divorce Settlement Agreements and Court Approval
The long process of divorce ends in a simple document called a marital settlement agreement (MSA). Divorce involves arguments, court hearings, and legal forms, but the settlement agreement can be straightforward. In some divorce cases, the couple can write their own settlement agreement.
Whatever route a divorcing couple takes to reach the final separation agreement, it must resolve all disputes and follow state law guidelines to receive court approval. This article reviews what goes into a successful marital settlement agreement.
The Divorce Settlement Agreement
If one party requests spousal support, the settlement agreement will mention support obligations. If the couple has minor children, the agreement will have a custody agreement attached.
The parties and their attorneys may work out the divorce settlement, or it may take several hearings with the family law judge. Eventually, it will contain any or all of these sections:
The settlement agreement must contain.
- Parenting plan
- Visitation (also known as "access" or "parenting time")
- Holiday schedule
- Provision for physical and legal custody
- Any other arrangements for the child
Judges have the discretion to sever the child custody portion of the divorce if they consider it in the best interests of the child.
Child Support Agreement
Parents may suggest a support arrangement, but judges must adhere to state child support guidelines. Parents can request a “downward deviation" from the guidelines in extreme situations. Judges seldom or never grant them unless there is support from another source, such as a grandparent or third party. Child support depends on parenting time and the income of both parents. It relies on the approval of the custody agreement.
Property Settlement Agreement
The property settlement agreement identifies:
- Each spouse's separate property, assets, and liabilities
- The marital property, assets, and liabilities
- Each spouse's portion of the marital property and a waiver of liability for any debts owed on their portion
- Balance payments and in-kind division of property
- Arrangement for payment of retirement benefits and disposal of the family home, if any
- Assignment of “after-acquired assets" (property the parties acquired after legal separation) to the parties
- Spousal support to be paid (including the amount and length of time) or waiver of the right to receive spousal support
If necessary, the settlement agreement should include:
- Release of temporary orders, such as restraining orders or support orders
- Waivers of rights either spouse may have for the other, such as death benefits
- Agreement for attorney's fees and costs, if any
The judge may add additional clauses if necessary. If a judge approves of the terms of the agreement as written, the agreement is appended to the divorce decree.
The end of the divorce process is the divorce decree. It resembles the marital settlement agreement, except it is a formal legal document with the judge's signature. It officially ends the marriage and returns the divorcing couple to single status.
The final divorce decree is a court order the divorced couple must obey. All support orders, instructions about the division of assets, and child support are now final. If the couple disagrees about anything in the divorce decree or needs to change anything later, the only way to do so is to appeal the decree or request a modification hearing.
It is not uncommon for divorce cases to proceed in stages. Divorcing spouses may agree on property division but not on child custody. Or they may agree on most of the property division but disagree about the amount and duration of alimony.
In these cases, the judge may accept a partial settlement and set a hearing or trial for the remaining issues. This lets the judge issue a divorce order for other matters while reserving judgment on the single issue holding the case up. Not all states or jurisdictions will approve partial settlements, so this is something to discuss with your attorney and the judge.
Get Legal Help With Your Divorce Settlement Agreement
The marital settlement agreement is the most critical portion of the divorce case. You need to know what goes in the agreement so the judge will approve it the first time. Contact an experienced divorce attorney in your area to help draft a divorce settlement agreement the judge will sign, so your divorce is as painless as possible.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.