Marital Settlement & Separation Agreements FAQ

What is a Marital Settlement and Separation Agreement?

Also known as separation agreements or property settlement agreements, a Marital Settlement and Separation Agreement is a contract between two divorcing parties that lays out the terms of their divorce. When agreed upon by both parties, these agreements will then make arrangements for the usage and ownership of assets, as well as handle issues like division of bills, alimony, insurance, and the overall division of the property pertaining to the marriage. In most cases, these agreements will also handle by which methods these issues are going to be resolved and separated.

Generally these agreements are separated into two types: those for couples with children and those for couples without children.

Why does the agreement differ for couples depending on whether they have children or not?

The issue of handling the children of a divorce can obviously get very complicated. Marital Settlement and Separation Agreements are not easily modified to suit the needs and wishes of the divorcing spouses, as well as address the care of the children involved. That’s why it’s important that the appropriate type of agreement be used to suit the child situation of the couple getting a divorce.

What kind of answers can be provided for a divorce in one of these forms?

If both sides agree to the terms of the agreement, a Marital Settlement and Separation Agreement can actually offer a comprehensive overview of the terms of the divorce. All property – from real estate on down – can be addressed in one of these forms, as can the issue of alimony payments. In the case of Marital Settlement and Separation Agreements where children are involved, the contract can list in detail the terms of child custody and the visitation rights of the parent to whom custody has not been granted. It can also lay out the terms for dual custody.

Are Marital Settlement and Separation Agreements for couples without children easier?

The better word would be “simpler.” There is less potential for complications in these agreements, but it’s also important to remember that other issues of divorce – alimony, property division, insurance, etc. – will still be present in a Marital Settlement and Separation Agreement for couples without children.

What if my spouse and I can’t agree on divorce terms?

The Marital Settlement and Separation Agreement is simply the result of negotiations between both parties; it’s up to the individual parties and their lawyers to reach agreements on the terms that will be laid out in the ultimate Marital Settlement and Separation Agreement. However, working with this agreement in mind can be a good way of beginning negotiations and learning exactly what kind of issues need to be resolved before it’s signed.

What provisions of the Marital Settlement and Separation Agreement will I need to pay attention to?

Naturally, you’ll want to pay attention to all of them, but here are the provisions that essentially make a Marital Settlement and Separation Agreement unique:

• Property Division: Deciding not only which property will belong to whom, this provision also lays out a strategy for dividing up the property. For example, if a house is granted to one party, the other party may need to cede their ownership via quitclaim deed – and the command to do so will appear in this provision of the Marital Settlement and Separation Agreement.
• Division of Bills: As expenses continue even after a divorce is final, it’s important to lay out the division of bills to ensure that bills are still promptly paid. This has long-term effects on each spouse’s finances that will last long after the marriage is already legally dissolved.
• Alimony Payment: The terms of alimony – if any – are outlined here. If the case goes to court, an alimony payment will be set (as will other provisions that were not agreed upon in a settlement agreement) by the courts.
• Insurance: Setting the terms for handling insurance (such as removing a spouse as an insurance beneficiary) is an oft-overlooked but a crucial and important part of the process of being financially honest with all insurance providers.

What happens if we can’t agree to terms for the Marital Settlement and Separation Agreement?

If an agreement cannot be reached, then the divorce case will likely go to court, where all of the provisions mentioned above will actually not be agreed upon between the two parties, but will actually be decided by the court. Much of the time, it’s important to avoid letting a court decide the terms of the divorce which is why it’s so important to keep open communication about the Marital Settlement and Separation Agreement.

When is a Marital Settlement and Separation Agreement enforceable?

Once the agreement is made, it will be up to the final dissolution of marriage to ensure that the agreement signed by both parties is then valid and enforceable. Generally there are no specific schedules (other than alimony payments) that have provision enforceability periods, so in essence the contract will then be final.

What are the requirements for a Marital Settlement and Separation Agreement to be valid?

In order for this contract to be valid, both spouses must agree to the terms, sign their agreement, be of sound mind and make the agreement of their own free will. These same requirements apply to most contracts wherein two parties are involved.

The issue of “consideration” – wherein both parties must receive some value as the result of a contract – for a Marital Settlement and Separation Agreement’s validity is generally not an issue as both parties will receive some part of the property in question.

When is a Marital Settlement and Separation Agreement effective?

Once signed and the divorce finalized, the Marital Settlement and Separation Agreement will then be effective, which means that alimony payments must be paid on schedule and the property division must be carried out swiftly. The Marital Settlement and Separation Agreement will generally lay out the methods by which these issues will be accomplished and sometimes even set deadlines for the same purpose.

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