In the lead-up to a divorce, each party needs to make critical decisions that will affect them for the rest of their lives. When divorce is unavoidable, and you are ready to reach a deal, it's time to create a divorce settlement agreement with established guidelines. Even in the most amicable of separations, deciding who gets what can be difficult, especially if children are involved. Let's go over what this agreement entails and what you can do to help the process go as smoothly as possible.
Find a Divorce Lawyer Competent in Divorce Settlement Agreements
Hiring a divorce lawyer or mediator ensures you're doing everything correctly during the divorce process. It can only be beneficial if an objective third party becomes involved to provide legal guidance during this difficult time.
If you don’t have any lawyer recommendations, the internet is an excellent place to begin. A basic online search is all it takes to find a lawyer in your city or county. Once you've found several you're interested in, start organizing consultations because face-to-face meetings will help you decide which one you're most comfortable collaborating with.
A good lawyer or mediator should put you at ease. Asking for a divorce and dealing with divorce contracts is stressful enough, so it's essential that you choose someone who is dedicated, whom you can build rapport with, and who will assist you in creating a suitable divorce agreement.
The Elements of a Separation Agreement
A divorce settlement agreement is a document in which couples agree on the terms of their divorce before it’s finalized. Before you can determine what a fair settlement entails, you must first understand the basic elements of marital settlement agreements.
Many issues need to be resolved during the divorce process, but the following are the most significant matters to negotiate that should be covered in the agreement:
- Child custody
- Non-custodial parent's custody and visitation rights
- Spousal support
- Splitting property other financial assets, as well as debt
- Any additional relevant concerns
Let's look more closely at the factors that need to be considered in a divorce agreement and the types of difficulties that must be resolved within each category.
Child Custody and Visitation Rights
According to federal law, each state is required to develop a set of child support and divorce guidelines to provide divorcing parents with an estimate of how much financial support their children require after divorce.
Often, parents negotiate these arrangements between themselves, either with the help of their family law attorneys or a mediator, or on their own. When they can't agree out of court, or when unmarried parents can't see eye to eye on who gets child custody, the court may step in and make a decision based on the child's best interests.
Physical Custody
Physical custody is frequently granted to one parent (usually the mother), with whom the child would spend the majority of their time.
Legal Custody
The right to make legal decisions as part of child custody after divorce includes health care, education, and other vital issues. This is referred to as "legal custody". It’s common for the custodial parent to share legal custody with the non-custodial parent.
Split Custody
Split custody is another possibility, though it is far less common. Here, one parent has custody of one (or more) of the couple’s children, and the other parent has custody of the remaining one (or ones). When imposing custody orders, courts normally prefer not to separate siblings.
Joint Custody
Some parents have chosen joint custody, in which the child spends equal time with both parents. Courts are hesitant to grant joint custody when settling a divorce unless both parents agree and can demonstrate the ability to make joint choices and cooperate for the sake of the child or children.
Determining Child Support
Most states provide a child support calculator that can assist you in determining the amount of child support a parent is required to provide. These are the factors the state usually takes into account:
- Who is the child's legal guardian
- The spouses’ incomes
- Child care costs
- Other out-of-pocket costs for the child
All of these criteria should be stipulated in a written divorce agreement so that child support payments are equitable for both spouses.
Determining Alimony in a Divorce Settlement
Alimony, also known as spousal support or spousal maintenance, is a regular payment from one spouse to the other. The alimony amount that can be awarded varies by state.
Alimony may be awarded if one spouse is financially dependent on the other. To determine whether alimony should be awarded or not, courts consider a variety of circumstances. Some of them are:
- The receiving spouse's education and employment
- Spouses' financial requirements
- Physical and mental issues that may impede one spouse from finding work
Determining an appropriate alimony duration and amount in a divorce contract is difficult, as laws and guidelines differ by state. The court reviewing your agreement has the authority to change the agreed-upon alimony duration and amount.
Alimony is typically awarded for a short period until the other spouse can become self-sufficient, which is usually one to three years. Please note that longer alimony duration is not unusual when the circumstances warrant it.
Dividing Assets and Debt in Divorce
Your assets as a couple will be divided as the divorce proceedings progress. But before you’re able to divide your assets, you must first establish whether certain property is separate or marital property. Unlike child support, a property divorce settlement calculator doesn’t exist.
Assets obtained during the marriage are referred to as marital property. Be sure to keep in mind that debt incurred during wedlock is to be borne equally as well. On the other hand, separate property refers to assets obtained before marriage (inheritance, gifts, etc.).
Even though a prenuptial agreement makes this process a lot easier, most couples do not have one in place. States typically divide property in one of two ways: through equitable distribution or through community property.
Equitable Distribution
Equitable distribution means that the judge will consider each case individually to determine what’s fair in the property settlement agreement after divorce. Before making a ruling, the judge analyzes a number of factors:
- Earning potential of the spouses
- Spouses' financial resources
- Separate property of the spouses
- The duration of the marriage
Equitable distribution does not imply that assets will be shared 50/50. It simply means that negotiations begin with a 50/50 split effort.
Community Property
Community property means that assets acquired in wedlock are treated in the divorce terms and conditions as if they had been obtained in a business partnership. Regardless of the status of either partner, marital property is normally divided 50/50 in these states: California, Texas, Idaho, Arizona, New Mexico, and Nevada, among others. However, marital property excludes items that each of the spouses has inherited from their family or received as a gift.
Implementing Your Agreement
You should read your agreement carefully before signing it to ensure it meets your needs and is error-free. If you and your spouse are unable to sign together, you must each sign in front of a different notary public. Each spouse should keep a copy of the signed agreement for their records.
Final Thoughts on Divorce Settlements
Regardless of how long you've been married and whether or not you're both on the same page, the decisions you make before initiating divorce will most likely set the tone for how the entire divorce process will unfold. If you’re unsure how to negotiate a divorce settlement with your spouse or about some of the agreement terms, you should consult with an attorney to ensure your rights are protected.
Establishing a divorce settlement proposal and agreement that addresses child custody and support, property distribution, alimony, and other relevant issues can be a challenging but indispensable task, as divorce brings with it a slew of legal and interpersonal issues.
