A divorce settlement agreement is a legal framework that outlines marital issues like spousal support, asset distribution, and child custody.
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Legally reviewed by Allison DeSantis, J.D.
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Updated on: August 23, 2024 · 9 min read
Divorce is difficult because it changes a million things in your life almost instantly. Also, things can get messy, no matter how good your intentions are about having an amicable split. A divorce settlement agreement is a legal document that helps you address complexities like the division of assets, parenting responsibilities, and financial obligations. It reduces uncertainty and helps divorcing spouses untangle their joint lives.
Let’s look closely at common mistakes in marital settlement agreements and how to negotiate effectively to get a settlement that allows you to move forward with clarity and security.
A divorce settlement agreement goes by many names:
Regardless of the name, this legally binding contract serves one purpose: To iron out and document all martial or divorce terms between the to-be-divorced couple. Think of it as a framework that will help you set and prioritize goals as you prepare to lead life solo.
It’s common for couples to use marital agreements to address alimony, child support, visitation rights, property division, and any other financial or parenting stipulations.
Settlement agreements can be reached out of court or during divorce litigation. Mediation, negotiation, and collaborative divorce are the most common and efficient ways to reach a divorce settlement.
If the following specific issues are not addressed in your settlement agreement, the court may not accept your proposal:
Distribution of marital assets, including benefits from retirement plans and insurance policies, is often a contentious issue in divorces. Depending on where you live, you might be obliged to follow the state's statutes. For example, in community property states, the courts split all marital property (including debts) 50-50 between the parties, regardless of who paid or incurred it.
Factors to consider as you decide who gets what are:
A lawyer can help you assign a fair value to assets and explain state property division rules and tax consequences. Also, if you have signed a prenuptial agreement, those terms may dictate your asset division.
Children—especially minor children—automatically increase the complexity of a divorce. When deciding what works best for your family dynamics and kids, evaluate the following:
If you're unable to resolve the issues, the courts will deliver a judgment based on what they think is fair and in the child's best interest. Most states use a specific formula to determine child support and custody matters.
A family law attorney can help you design a parenting and child custody plan that can evolve according to the children’s needs.
Alimony is prevalent when one spouse is financially better off than the other. A classic example is when one spouse is the stay-at-home parent and the other is the breadwinner. While discussing spousal support, consider the following:
A divorce lawyer can help gather documents (utility bills, pay stubs, and student loans) that will support your alimony claim while keeping your expectations in check. Many states have limits on alimony based on a percentage of the paying spouse’s income. Even if you demonstrate a need, if your spouse is bringing home $100,000 a year, you can’t demand $60,000 in alimony.
Negotiating a marital settlement agreement isn’t just getting into a room and talking things out. Successful negotiations require some prep work and guidance.
Whether you have just filed your petition or received a marital settlement agreement from your spouse, the first step is to get legal representation. A divorce attorney knows how to interpret the legalese and provide an accurate assessment of what the agreement would mean for you. They can also guide you through your state’s divorce protocols and processes.
A little bit of due diligence and gathering of relevant financial documentation can lead to amicable, productive, and efficient negotiations. Your marital property checklist should include pay stubs, bank statements, tax returns, mortgages, tuition receipts, healthcare premiums, and credit card balances. Having an accurate financial picture will help you identify each other’s needs and priorities and aid decision-making.
Head into negotiation with a willingness to communicate honestly and openly, without anger. Negotiations aren’t the time to be mean or play the blame game, as this only creates more tension, which can increase the time it takes for divorce and lead to a court battle. A mediator or collaborative divorce attorney can facilitate communication.
While it's easy to put your foot down and ask for XYZ, marital settlements are most successful when they are driven by fairness and respect. Try to see the other side and kids' (if any) perspective and focus on finding a compromise.
Reaching a settlement agreement is part of the divorce process and it generally involves the following components:
Divorce is messy, and you don’t want to stretch or over complicate matters by committing an error. These six marital settlement agreement mistakes can end up costing you in the end:
Avoid these common mistakes by working with an attorney to navigate your divorce. LegalZoom’s network of lawyers can help ease the burden of this process so you can step into your next phase with some peace of mind.
Yes, you can. But, if a judge has already included your settlement in your final divorce decree, you will need solid grounds—such as moving to a different state, losing your job, or steep increase in childcare cost—to amend the agreement.
To make the change, both parties need to file a signed modification agreement. If the court approves the changes, it will issue a new court order.
A spouse refusing to sign the marital settlement agreement even after verbally agreeing to the terms clearly signals that you might need more legal help. A divorce lawyer can help you explore your legal options, like undergoing mediation or going to trial.
The exact way a prenuptial agreement impacts your settlement depends on the type of divorce and whether the prenup is still valid and enforceable. In most cases, a valid prenuptial agreement will simplify your settlement.
However, in some states (for instance, Wisconsin), the prenuptial agreement must be deemed fair at the time of the divorce to be enforceable. If one party’s circumstances have changed drastically, or the other party challenges the prenup terms, you may have to negotiate new terms.
A divorce settlement that is approved and included in your divorce judgment is legally binding. If an ex-spouse violates the terms, you can pursue legal action to ensure enforcement.
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