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What is a marital settlement agreement in a divorce

December 3, 2018 Our Blog

Not all marriages are destined to last. However, not all marriages end in vicious altercations either. Even if a couple decides to divorce, they may be able to come to terms about the divorce in a constructive and amicable way. If you and your spouse agree on details like child custody, child support payments, and division of assets, a marital settlement agreement may be one of your best options.

This type of agreement can also be called a stipulation of settlement. It’s one of the many pieces of paperwork you’ll file with the court. The contract will be an essential part of the final judgment in the divorce.

When you and your spouse can come to an agreement about a marital settlement, a great deal of the potential stress is removed. Divorces tend to be emotionally fraught situations. Anything that makes the proceeding easier is ideal. Spouses who agree in advance about their divorce details will save long periods of painful negotiating. You may also be able to avoid lengthy court appearances, misunderstandings, and further emotional pain.

With this type of agreement, you and your spouse are working together. Together, you’ll give the court a well-negotiated agreement about the terms with which you’re ending your marriage. Since the negotiation is already done, the divorce proceedings won’t drag on for ages. You’ll have a quick, inexpensive divorce and be able to move on with your lives. Trials are costly, time-consuming, and emotionally exhausting. If you can, you should avoid one.

Dividing Property

In New York, equitable distribution is the law of the land. If anything is considered a marital asset, it will be divided according to the law during the divorce. There are many different liabilities, assets, and properties that may be part of your settlement.

It’s possible to make provisions for your children in the agreement. If you’ve worked out visitation issues and a custody arrangement, this may be part of the settlement. With that said, both parents are required to fulfill their obligations to their children. This means that a non-custodial parent must pay some form of child support.

No matter how well negotiated the situation, any issues regarding children will be ultimately decided through the court. The court’s job is to ensure any decisions regarding a child’s upbringing are in that child’s best interest. It’s important to have a judge legally oversee your custody and support negotiations to make sure they’re fair.

Enforcing a Settlement Contract

Like all settlements, a marital settlement agreement is a contract that is legally binding. Judgments tend to be the final ruling, and you cannot challenge the terms of the divorce afterward. There are, however, some limited situations in which one party might challenge the judgment’s validity with a marital settlement agreement.

In a typical case, the court will not overturn terms that you and your spouse have negotiated together. You must both have legal representation, though, to prove to the judge that you’ve received legal advice. Challenging the judgment is a difficult process because of the proof required.

If fraud was committed, the agreement might be challenged. When the initial divorce proceedings begin, both spouses are required to file a financial disclosure statement. This sworn statement explains all of the financial assets an individual has. Sometimes a spouse will hide assets and property rather than disclosing them. This is an illegal act that renders the agreement fraudulent. If you can prove that assets were not disclosed, the court may refuse the original agreement.

Hiding assets and property isn’t the only type of fraud. It is also fraud if you disclose your property but underestimate its value.

A mutual mistake is the second reason the court may not honor the agreement. This occurs when the spouses genuinely believed they’d accounted for all of their assets, but belatedly realized they had missed some details.

Even though neither spouse knew about the missing property, the agreement still doesn’t reflect an accurate distribution of assets. It needs to be amended to include details about the previously undisclosed property.

Can we make a binding settlement agreement without lawyers?

If you and your spouse want to make a binding settlement agreement without getting any divorce lawyers involved on either side, you can do so. However, it’s almost always better to hire a divorce lawyer to serve as your representation and go over any proposed settlement agreements for you.

It’s much easier to get a settlement agreement right the first time than to modify it after it has already been made official. By handling the settlement on your own, you may end up with an agreement that you later regret. A divorce lawyer knows all about divorce laws in ways that you don’t.

Still interested in setting up a binding settlement agreement with no lawyers? This post will cover how you can do it.

How You and Your Spouse Can Make a Binding Settlement Agreement

In most divorces, the couple reaches an agreement without needing to go through a lengthy divorce trial. Only a select few cases need to be decided by the courts.

You and your spouse can make your own settlement agreement before either of you files for divorce or after, although most handle it after one party has filed a petition for divorce. There are several items that the settlement agreement will need to cover.

The agreement needs to stipulate the division of property and financial matters, including debts. If you and your spouse have children, the agreement will need to include their living arrangements, a visitation schedule and child support. You and your spouse must also come to an agreement on spousal support.

If you and your spouse make your own settlement agreement, you can present it to a mediator and have them draw it up for you. Then, you two simply need to sign it and submit it to the court. A judge will review it, and if they approve of it, they’ll sign your divorce decree. The settlement agreement then becomes a legally binding document that you and your ex-spouse must follow.

Potential Problems with Making Your Own Settlement Agreement

The primary issue with you and your spouse making your own settlement agreement is the potential for an unfair agreement. If a judge doesn’t feel the agreement is fair, they may tell you and your spouse to renegotiate it. However, if the agreement becomes official and you later feel like it’s unfair, the process of changing it can be difficult. You will either need to get your spouse’s consent for any changes or file a motion with the court and demonstrate evidence for why the agreement should be modified.

One thing to keep in mind is that even if you and your spouse want to make the settlement agreement on your own, you can still hire a divorce lawyer to simply look it over for you once it’s complete. Your lawyer can then let you know if there are any potential issues. If you do this, you will need to get your own lawyer, as you and your spouse can’t each have the same lawyer look over the agreement. That would be a conflict of interest for the lawyer, who needs to consider the interests of both you and your spouse.

What if you and your spouse agree on most points but are having trouble with one or two areas of the settlement? Hiring divorce lawyers can help with this, or you two can agree to a partial settlement on the points that you’ve already decided. With a partial settlement, any unsettled matters are left up to the court to decide.

You and your spouse may want to handle everything yourselves, but remember that this settlement agreement can affect you for the rest of your life. It’s much smarter to have a divorce lawyer looking out for you, at least to check the agreement before you submit it to the judge and make it official.

Can I have the settlement changed after I signed the agreement?

When you’re going through the divorce process and you sign a settlement agreement, that is a legally binding contract. Both you and your spouse are bound by the terms of that contract. Although it’s uncommon to have settlements changed, there are a few potential scenarios when it can happen.

Having a Settlement Changed Before a Judge Signs It

If you have a change of heart on a settlement, the best time to get it changed is before the judge can sign it and make it official, although whether you can do this depends on the laws in your state.

Time is obviously of the essence in this situation. After you sign the agreement, your lawyer sends it to the court to become part of the divorce decree. The judge must sign divorce decree to make it official.

Let your divorce lawyer know right away if you no longer want to go through with the settlement. If they haven’t sent anything in yet, then the settlement won’t become official. If they have, they may be able to stop it before it goes before the judge by contacting the court. You’ll need to contact the court yourself if you didn’t have a divorce lawyer.

Should this work and you get the settlement stopped before it becomes official, you can propose your desired changes.

Having a Settlement Changed After It’s Official

It’s more difficult to make changes after your divorce decree is official, unless your ex-spouse is okay with changing the agreement. If they are, you two can both sign a new agreement to present to the court. There may need to be a hearing to ensure that you both accept this new settlement, but as long as both parties agree to it, the process of changing the settlement is typically simple enough.

Without your ex-spouse’s consent, you need to file a motion with the court to open the divorce case again and change the settlement. There needs to be a valid reason for this, because the court won’t change your settlement simply because you no longer like it. There are two common reasons that can work in this instance.

The Original Settlement Was Invalid

You can claim that the circumstances involved with the original settlement make it invalid. This would be the case if either party lacked the mental capacity to fully understand what they were signing at the time, if you were forced in some way to sign the agreement or if your spouse committed fraud, such as concealing assets.

Of course, the burden of proof will be on you in this situation. If the court reopens your divorce case, you’ll need evidence that your allegations are accurate.

A Significant Change in Circumstances

The more common scenario where a settlement gets changed is when a spouse’s circumstances change significantly since the settlement was signed. For example, if your ex-spouse is paying spousal support and they get a new position that pays much more than their previous one, you could seek a change in the support amount. If your settlement specified that each of you sees your children for a certain amount of time, but your ex-spouse becomes addicted to drugs, you could seek a change to prevent your ex-spouse from being alone with your children.

Any changes to a settlement will be at the discretion of the court. The more evidence you have to support your motion, the more likely it is that the court will approve the change.

Remember that you must abide by the terms of a settlement until it is officially changed. If you want to change a settlement that you and your ex-spouse signed, you should consult with a divorce lawyer who can advise you on if a court is likely to approve the change, file the motion for you and represent you if your divorce case gets reopened.



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