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LegalNature’s divorce settlement agreement helps make the divorce process more manageable by clarifying the parties’ needs and expectations. Review this guide for an overview of creating a divorce settlement agreement to be used when filing for divorce.

Division of Marital Property and Debts

One major function of the agreement is to decide how any assets and debts acquired during marriage will be divided. Normally, assets received before marriage or after separation remain the sole property of the individual who acquired them. However, assets may be divided in any manner you wish. If you acquired a home during the marriage, this is often the most important asset to be divided. You can agree to sell the home and divide the profits or let one of the spouses keep the home, in which case that spouse may agree to buy out the other spouse’s ownership interest. If one spouse keeps the home and it is under a mortgage, then that spouse will be responsible for changing the mortgage into his or her individual name within 60 days of the court issuing a final divorce decree.

You are not required to specify how every single asset you own will be divided unless you prefer to. It will be simpler to only list the items in the agreement that have significant or sentimental value. Items of lesser value can be divided outside of the agreement unless you are worried about an unfair division. The agreement explains that any property not specifically listed will be owned by whoever has physical possession or documented ownership.

Child Custody

If you have children together, you must decide each parent’s rights concerning legal and physical custody of each child. "Legal custody" is the right to make important life decisions regarding the upbringing of the child, such as decisions concerning education, finances, and health care. "Physical custody" is the right to have the child live with you. You must also agree on your preferences regarding visitation rights.

Child custody can be arranged in different ways. For instance, you might give one parent legal custody and the other parent physical custody, one parent could have both legal and physical custody, or both parents might have joint legal and physical custody. The custody arrangement selected will depend on heavy consideration of what is in the best interests of the child. Joint custody is the most common arrangement.

Child Support

Often, one parent will be responsible for paying child support to the other parent. Review your state guidelines to learn how to calculate the amount of a child support payment.

Alimony

Alimony is money paid from one spouse to another to help support them. Each state has different laws regarding how much alimony is allowed. Those living in community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin) may find that an alimony award is prohibited or limited. This is because spouses seeking alimony in these states typically receive a greater division of the marital property than those in other states.

Alimony Duration

States also have different guidelines determining how long alimony must be paid. Usually, alimony is awarded for a short amount of time—say one to three years—until the other spouse can become self-sufficient. However, longer alimony durations are not uncommon when justified by the circumstances. Keep in mind that the court reviewing your agreement will have the power to alter the agreed upon alimony amount and duration.

Name Change

Our form allows you to specify whether a spouse wants a name change. Although you are not required to change your name when you get a divorce, many people choose to do so as part of starting their new life. Having the judge approve your legal name change will save you the additional hassle and expense of having to do it later on in a separate procedure.

Executing Your Agreement

Before signing your agreement, be sure to read it thoroughly to make sure it is free of mistakes and will suit your needs. When you are ready to sign, you must wait to do so until you are in the presence of a notary public. If you and your spouse cannot sign together, you each will need to sign in front of a separate notary public. After it is signed, each spouse should retain a copy of the signed agreement for their records.

Filing for Divorce

Attorney vs. No Attorney

While divorce attorneys can help, you are not required to use one. Many people choose to handle the divorce themselves or hire a mediator. You should consider getting a divorce attorney if there is strong disagreement regarding the divorce settlement or the parties need help understanding the agreement. However, if the spouses are able to work together to reach an amicable settlement, then you can consider foregoing an attorney. Even if you have already hired a divorce attorney, creating the settlement agreement yourself and only having them review and edit it can sometimes save on legal fees.

Note that state law varies greatly as to the specific requirements for initiating a divorce case in family court. For help figuring out the specific forms and procedures you should follow, contact a family or divorce court administrator (often the Clerk of Court) at the court that you will file your case in.

Grounds for Divorce

All 50 states now grant divorce based on no-fault grounds. A "no-fault" divorce is a divorce based on the consent of both spouses. The spouses are simply claiming that their marriage is irretrievably broken due to irreconcilable differences. Many states have completely done away with fault-based divorce and now only allow no-fault divorces. These states are Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Iowa, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Oregon, Tennessee, Washington, and Wisconsin. If you are filing your case in one of these states, then your agreement will automatically specify that you are seeking a no-fault divorce.

Fault vs. No-Fault Divorce

If you are not in one of the states listed above, then you will have the option of specifying whether you want a divorce based on fault or no-fault grounds. If you think that you and your spouse can come to an agreement on the terms of your divorce settlement agreement, then it will be easier for you to request a no-fault divorce. This is because no-fault divorces do not require you to go through the tricky process of trying to prove that one of the spouses is at fault.

However, there are some reasons why a fault-based divorce could be more desirable. For instance, courts may take into account the fault or bad behavior of one of the spouses when determining the following: how to divide the marital property; which spouse will have physical and legal custody of any minors; and how much alimony should be awarded, if any. Also, note that it is possible for the spouse that is at fault to not contest the grounds for divorce by admitting his or her own fault. Common fault-based grounds for divorce include adultery, abandonment, cruel and inhumane treatment, habitual drunkenness or drug use, and felony conviction.

Residency Requirements

Most states require that one or both spouses have resided in the state for a certain amount of time before they can file for divorce in that state. The residency requirement is usually six months to a year. However, review this chart if you are unsure of whether you meet the residency requirement in your state. You may also search online or call the county Clerk of Court if you need more help figuring this out.

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Frequently Asked Questions

What is a divorce settlement agreement?

A divorce settlement agreement puts everything you and your soon-to-be ex-spouse have agreed upon into writing and can be formalized by the court. Even if you both agree, you will need to complete this documentation to complete your divorce. Other common names for a divorce settlement agreement include the following:

  • Marital settlement agreement
  • Property settlement agreement
  • Support, property, and custody agreement

The agreement is designed to lay out the conditions of your divorce and any agreements you have reached with your former partner. A divorce settlement agreement could cover child support, custody, alimony, and even the division of your personal property, shared property, and debts.

What should I include in a divorce settlement agreement?

Your divorce settlement agreement should cover everything that is important to you, including custody of your children, child support payments, alimony, and the separation of your property, such as your family home, vehicles, and other assets. Your divorce settlement agreement is about more than just the things you own; it should also cover your debts and expected expenses.

If you have kids, everything from paying for braces and related expenses to college savings and tuition needs to be included. If you own pets, even the custody of your animals can be defined in this document. By drafting a comprehensive agreement that covers as many eventualities as you can, you end up with a document that clearly outlines your rights and responsibilities after your marriage. If something is important to you, it should be included in your divorce settlement agreement.

How long does it take to get a divorce?

It depends on where you live and whether your divorce is contested or uncontested. If you both agree on everything, you can be divorced in as little as three months, depending on your location. Some states have a mandatory separation or waiting period before a divorce can be finalized. If one party cannot be found or does not agree, your divorce could take up to two years to be complete. The more you agree and the less acrimonious your divorce is, the faster and easier it will be to complete.

What is the difference between an uncontested divorce and a contested divorce?

In an uncontested divorce, you both agree to divorce and you come up with settlement terms you can both live with without a trial or court intervention. An uncontested divorce is not dispute or negotiation free; it simply means you were able to reach an agreement without resorting to having a judge making the decisions for you. There are some clear benefits to an uncontested divorce, including less stress for both parties, lower costs, and a faster resolution.

In a contested divorce, one party either does not want to divorce at all or the spouses simply cannot agree on the terms. Common areas of dispute include child custody, child support, alimony, and the division of property. When you cannot reach an agreement, you will need to head to court for a judge to decide on these points for you. A contested divorce takes longer, costs more, and is generally more stressful and hostile than an uncontested divorce.

What is the difference between traditional marriage and common law marriage?

In certain countries, a couple must perform a marriage ceremony in order to be legally married. However, a marriage ceremony is not required in most states in the U.S. The main requirements in most states for a traditional marriage are that each person be at least 18 years of age; they sign a marriage certificate in the presence of a minister, judge, or other authorized officiant; and they receive a marriage license from the state.

However, some states also allow common law marriages. Common law marriages are where the state recognizes a couple as legally married even if they never signed a marriage certificate or received a marriage license. In order to be common law married, the couple must have lived together for a significant amount of time and introduce themselves as married to others. The couple should also share things that married couples normally share, such as bank accounts, joint tax returns, and a last name.

States recognizing common law marriages include Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. While most of these states do not permit common law marriages between same-sex individuals, this has started to changed after same-sex marriages were legalized by the federal government in 2015. Once your status as common law married has been accepted in a state, other states must accept your marriage even if they do not permit common law marriages. Couples with common law marriages are given the same rights as those in traditional marriages.

If you ever need to provide evidence of your common law marriage, you can have your partner sign an affidavit attesting to your marriage. You can also get your friends and family to sign similar affidavits. For instance, this may help you when applying for a foreign visa or if you have lost your marriage certificate.

In addition, you can also provide evidence of your marriage by collecting any documents you have that support your relationship, such as shared credit card accounts, bank statements, and birth certificates of any children you have had together.

What is child custody?

There are two types of child custody: physical custody and legal custody. When a parent in a divorce proceeding receives physical custody, that parent has the right to have the child in question live at the parent's residence.

If the court awards the parents joint physical custody, then the child will split his or her time living with each parent. This often happens if the two parents live close enough to make this option practical. When the child lives mainly with one parent, that parent will have custody of the child while the other parent can gain visitation rights.

Legal custody gives a parent the right to make important decisions about the child’s upbringing, including such important matters as the child's religion and schooling. Again, a court may choose to award joint legal custody to both parents. However, where only one parent receives physical or legal custody, that parent is said to have sole custody of the child in that regard.

Do I need an attorney to get divorced?

It is not necessary to hire an attorney to handle a divorce. That said, for particularly complicated divorces or where large sums of money are at stake, a lawyer will help ensure that his or her client’s interests are best protected. Common disputes include those concerning the custody of children, the question of alimony, and the division of joint assets. You may need an independent mediator to help sort out these issues. Most couples want to sort out these matters as soon as possible, so often an attorney or a mediator offers the best bridge to a satisfactory solution for both financial and emotional matters.

Divorce can be granted in all states in the United States based on a ‘no-fault’ clause, which means both spouses have consented to the divorce. In this situation both spouses are claiming that their marriage has broken down and it is now irretrievable due to the differences between them being too great. Some states accept a no-fault divorce without question, such as Arizona and Colorado (17 states in total). In any other state, you are given the option of either a fault or no-fault divorce.

A no-fault divorce is the easiest route if you are able to reach an agreement on assets, alimony, and child support issues. If there are any issues that could affect the divorce settlement, such as unacceptable behavior of one of the spouses, a fault divorce may be the best idea as this will help to determine such things as the dividing up of joint property, determining the legal and physical custody of any joint children, and the amount of alimony expected.

A fault divorce can take place if one of the partners has committed adultery, has abandoned his or her partner, or has acted in a cruel and inhumane way both mentally and physically. Chronic drunkenness, drug addiction, and felony conviction are potential grounds too. In the state of Illinois, a spouse can also file for an at-fault divorce if bigamy or impotency have occurred.

What are the steps for filing for divorce?

There are a number of stages to completing the formalities of a divorce.

  • Obtain and file the petition. Go to the family law website for your state government where you can obtain a “Petition for Divorce or Dissolution of Marriage.” You can also get this by visiting your local Clerk of Court’s office if you prefer. If you call this office, they can tell you if you need to attach any additional information with your petition such as a financial affidavit. Then complete and file your petition.
  • Serve your spouse with the petition and a summons. Most states allow this to be done through certified mail. If the state you live in does not allow this, you will need to ask someone else to do it on your behalf, such as an officer of the law, private service company, or an adult who is not affected by your divorce.
  • Your spouse accepts or rejects your petition. To accept, your spouse will need to file a voluntary acceptance form. If the spouse rejects the petition, then the divorce will be considered “contested,” and he or she will need to file a response to your petition.
  • Submit a divorce settlement agreement and a proposed judgment. Often, you will enter a waiting period before your case goes to court. This is your chance to finish completing your divorce settlement agreement. This spells out your particular wishes for the divorce, including the division of your assets and debts, child custody, child support, and alimony. Note that you may complete this agreement before or after the couple is separated or divorced.
  • Attend the hearing. The judge will review your case and render a judgment if everything meets the requirements.

What happens at a divorce hearing?

In most cases the judge will grant the divorce as long as the divorce settlement agreement is fair. If your spouse contests the agreement, you may need to attend further hearings until the matter is satisfactorily resolved. The judge will tell you what, if anything, you need to do.

The procedures in a hearing do vary from state to state. If you are not sure, the Clerk of Court will tell you on request. If there are no irregularities, the judge will review the settlement and make sure that the contents are fair. After this, a divorce decree is granted.

What happens if spouses cannot agree on a divorce settlement?

If you and your spouse have been unable to reach an agreement on a divorce settlement, you—with the help of your attorneys or mediators if you are using them—may decide to submit the areas under dispute before a judge at a pretrial conference. This sort of conference normally takes place in the judge's chambers.

If you are using attorneys and the divorce is not mutual or you cannot reach an agreement in terms of child custody, estate distribution, and alimony, then you will probably have two different attorneys representing your individual concerns and interests. These attorneys will put forward your two different positions to the judge at the pretrial conference, and the judge will make recommendations for a just settlement. These recommendations do not bind the parties but help to determine what will happen at the trial. They are also often an impetus to come to an agreement before the trial date.

Even if a pretrial conference cannot bring an early settlement, a trial date will be set, which could take several months. In the period leading up to the trial, your attorney will be undertaking certain tasks as part of the trial preparation. This could include the interviewing of useful witnesses, taking depositions, studying reports from experts, and reviewing any facts submitted by your ex-spouse.

Obviously, if there is a large estate to consider, a trial may be the only way to ensure a fair distribution of the wealth. You can expect to pay a lot of money to go through the trial stage. In the end, you will have no choice but to accept the decision made by the judge, as no jury is involved in divorce proceedings.

Alimony: What do I need to know before divorce?

If a divorce has become a reality for you, alimony payments may become a necessity. This is most likely the case if one spouse’s earnings are more than the other’s and you have been married for a minimum number of years. If the court orders you to pay alimony, you will need to pay it once a month until a specific date determined by the judge.

There are certain conditions when alimony may cease, including if your spouse remarries, if your children become no longer classified as dependents, if your former spouse does not make at least a minimal effort to support his or herself, and if the recipient of the alimony dies.

What is mediation?

One of the most common ways of finding a solution after a marital breakdown is to go through the process of mediation in order to reach an agreement on the terms of a separation or divorce. In divorce mediation, you arrange a meeting between yourself and your spouse and, in some cases, each of your lawyers. You call in a third party who acts as the mediator. The mediator is not responsible for making decisions on your behalf, but uses his or her experience in order to offer suggestions that will help you and your spouse reach a fair agreement on matters such as alimony, child custody, and the distribution of any of your joint assets.

Do I need to inform the IRS about my divorce?

When investments and assets are transferred, a whole new ball game emerges when it comes to paying taxes. You will want to know your tax situation in advance of reaching a financial settlement with your ex-spouse. You must inform the IRS as soon as you know your new marital situation in order to avoid paying either too little or too much tax.

Do I have to go to court?

If the divorce is uncontested, you may not have to go to court at all. You will have to file the papers, but the judgment can be sent to you. In some cases, the court may require a hearing that is informal or formal; if there are questions about your papers or your proposed settlement agreement, you may need to review them before your divorce can be finalized.

Even if you do not agree on everything, you can try mediation, arbitration, or even negotiation via a third party before you take your dispute to court. These alternatives often offer a cheaper and faster means of reaching an effective settlement. The most common areas for disputes and disagreements include child custody and support, alimony, and the division of property. If you cannot agree on these things, you may need additional help.

How is spousal support determined?

Alimony, or spousal support, can be included in your divorce settlement agreement, specified in a prenuptial agreement, or determined by the court.

How is child custody decided?

Ideally, you and your partner will be able to work out a child custody agreement as part of your separation or divorce agreement. If the court is left to decide, they will make the decision based on the best interests of the children involved. Your state will have specific guidelines designed to help determine custody, but in general, children are best served when they have time with both parents. If you both agree on where the children should live, who should care for them, and how often they should visit the non-custodial parent, then this information can be included in your divorce settlement agreement and eventually merged into your divorce decree.

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After completing your divorce settlement agreement, you will need to take the following steps to have your agreement approved with the divorce court:

Step 1: File the Divorce Petition

First you will need to file your petition for divorce or dissolution of marriage with the appropriate court. You can usually find the information for the court you need by calling your county courthouse or by searching online. You can obtain the petition either on your state's family law website or by calling the Clerk of Court. Be sure to check with the clerk to see if any financial affidavits or other attachments are required to be submitted with your petition. If your divorce settlement agreement is complete, you may be able to include it with your petition to help expedite the process.

Step 2: Serve Your Spouse

Serve your spouse with the petition and a summons. This is called "service of process" and it will officially put your spouse on notice that you have initiated the divorce proceedings. Check your state laws to know how to properly serve someone. Most states allow for service via certified mail, return receipt requested. If your state is one of the few that does not allow for service by mail, you will need to get a law officer, private service company, or a disinterested adult to serve the papers in person on your spouse.

Step 3: Wait for Your Spouse's Response

Your spouse will need to file a response either accepting or rejecting the statements in your petition. Then your case will be scheduled for a hearing. If your spouse fails to respond, you may receive a default judgment in your favor.

Step 4: Prepare for the Hearing

While waiting for the hearing, you and your spouse can finalize the terms of your divorce settlement agreement if parts of it are still being negotiated. You will usually submit your divorce settlement agreement before the hearing to give the judge time to review its terms. Attach copies of any court orders already issued pertaining to your marriage or to matters of child support.

Step 5: Attend the Hearing

At the hearing, if the judge finds the divorce settlement agreement fair and there are no other issues to decide, the judge will grant your divorce. If the divorce is contested by one of the spouses or the judge finds the divorce settlement agreement to not be fair, the process may take longer and you may be required to attend multiple hearings. Again, it is a good idea to contact a family or divorce court administrator, usually the Clerk of Court, to get information on the specific procedures required in your state.

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