Preliminary Matters

By | March 27, 2008

The first and most important preliminary matter that you and your spouse must both confront is: You are urged to think very seriously about the answer to this question. Until your divorce is actually finalized by a court of law, you can attempt at any time to reconcile your differences with your spouse and continue with your marriage. None of the steps that you will take until your divorce is final are necessarily irreversible. Divorce is a very big step in your life and should not be taken lightly.
For many people, separation is the first step in the divorce process. You and your spouse may decide to separate under the terms of a separation agreement or you may wish to seek an actual legal separation from a court. A legal court-ordered separation is slightly different than a separation by agreement. Legal court-ordered separations are not provided for in all states. However, a marital separation by mutual agreement is recognized and honored in every state. Check the Appendix for the law in your state. In a legal court-ordered separation, there is actually a court order that specifies that the couple is separated. This court order may set out all of the terms of the separation, or the court order may simply validate all of the terms that the couple have already agreed to in a separation agreement. Neither a legal court-ordered separation nor a separation agreement will legally end the marriage. Only a divorce can do that.

There are some distinct benefits to a separation prior to divorce. First, the period of separation from your spouse begins to prepare you for the emotional impact of divorce. In a separation, you may enter into an agreement covering all of the issues that arise during the course of an actual divorce, and it is much easier to mutually change the terms of this agreement prior to an actual divorce. In some ways, a separation may act as a trial divorce. You can always get back together with your spouse, if you both desire. In addition, some couples who do not wish to divorce decide to live separately for religious or moral reasons.

The marital settlement agreement that you prepare may be used in the same manner as a separation agreement. It will cover all of the same concerns as a separation agreement. Your marital settlement agreement addresses the issue of separation and may be used if you desire to enter into a legal court-ordered separation. Your state’s listing in the Appendix briefly explains the law regarding legal court-ordered separations in your state.

The Marital Settlement Agreement will cover all of the terms of your eventual divorce. Included in your agreement will be all of the decisions that you and your spouse make regarding how your property and bills are divided, whether either of you should get alimony, and, if you have any children, who will have custody of them and how their support will be provided. This agreement, when signed by you and your spouse, will become a valid legal contract that will be enforceable in a court of law if either you or your spouse violate its terms. In addition, the agreement that you prepare will be used in your actual divorce proceedings. Judges will not generally change any of the terms in a marital settlement agreement, unless they feel that the terms are obviously unfair, were obtained by force or threats, or are not in the best interests of any children.

The method for preparing a marital settlement agreement is essentially identical to the method used by the vast majority of lawyers who handle divorces. Upon visiting a lawyer for a divorce, you would be asked to fill out an extensive questionnaire covering all of the aspects that might arise in the course of your divorce pro-ceeding. The lawyer would then determine what you want to achieve in your divorce; what property you wish to retain, which parent you wish to have custody, and whether child support or alimony is desired. Your lawyer and your spouse’s lawyer would then attempt to negotiate the various issues, and if possible, put them in the form of a marital settlement. The lawyers would use legal texts that contain clauses very similar to the ones that follow to prepare your agreement. The only difference is that the language in the agreement that most lawyers would prepare would be unintelligible to most people.

You and your spouse, however, are the two people who know the most about your current relationship. You both are the two most qualified people to understand what each wants out of the marriage. If you can both cooperate enough to agree to the terms of your marital settlement agreement, your subsequent divorce should be achieved with far less difficulty and expense than if you use the services of lawyers. If you can’t agree to the terms of your agreement without lawyers, it is not likely that you will be able to agree once you both have hired lawyers. If you can’t come to an agreement, even with the assistance of lawyers, a judge who knows very little about you and your spouse will make the important decisions that you were unable to make.

With these points in mind, try to make an honest and mature effort to reach an agreement with your spouse that will be fair and workable for both of you. An agreement that is one-sided, unfair, or made in haste just to get it over with is worse than no agreement at all. To use the marital settlement agreement correctly will take some time. It is time that you would normally be paying for a lawyer to complete the same tasks. In effect, you and your spouse will be saving two times a lawyer’s normal hourly fees (about $150.00 per hour × two) for every hour that you both spend doing the work yourselves. In addition, the time that you spend achieving an agreement that is fair to both of you will be repaid many times over in the ease with which you will both make the transition from married to single life.
© Nova Publishing Company, 2005