OUR BLOG

16 Jul 16

What is a marital settlement agreement in a divorce?

| by

Last Updated on

The marital settlement agreement goes by many names such as collaborative settlement agreement, mediated separation agreement or custody, support and property agreement. It may also be referred to as divorce settlement agreement, property settlement agreement or separation agreement. Marital settlement agreement is a written document that memorializes any agreements that have been reached between the divorcing spouses. This agreement pays much attention to child support, alimony, child custody and division of property. Alimony may also be known as maintenance or spousal support. In most divorce proceedings, these areas are always sensitive, thus the need to put it down in writing regarding the decisions reached between the divorcing spouses.

If the goal of the divorcing spouses is to avoid attorney fees and unnecessary turmoil, they will settle their case at the earliest moment possible. Once the spouses agree on the property rights, child support and custody as well as visitation agreement and put it on paper, they will file it with the court. In the courts, the marital agreement will become part of the divorce judgment as it will play a pivotal role in the decision making process. When used as part of divorce judgment, the agreement is known as divorce decree.

Divorce is a stressful situation. To this end, by agreeing on the contentious issues, you and your spouse will avoid misunderstandings and court appearances. A well-negotiated and cautiously written marital settlement agreement can proof to the court that you and your spouse have made considerations regarding all the matters related to your specific situation. An exhaustive marital settlement agreement can lead to quick and less expensive divorce. Through a marital statement agreement, you and your spouse will avoid a trial, which may be costly and time consuming. In case of children, there is need to work on issues of support, custody and visitation. This way, spouses cannot omit their obligations to support their minor children.

Since the issue of children is sensitive in nature, child custody, support and visitation cases are considered and determined by the courts. The determination is based on the best interests of the children. Marital settlement agreements are enforceable contracts. The judgment of divorce that incorporates a marital settlement agreement is considered final and such a divorce cannot be challenged. In the same breadth, a court cannot declare a marital settlement agreement to be invalid, especially when negotiations have been undertaken and both spouses represented by counsel. However, a spouse is free to challenge the marital settlement agreement although it is a herculean task to prove.

The following are ways through which a court may decline to enforce a marital settlement agreement:

• In case of Fraud – When filling for divorce, you and your spouse are obligated to file a sworn statement of net worth, which is a financial disclosure statement. If you and your spouse fail to disclose all your assets and properties, the court will refuse to enforce the settlement agreement. In addition, if you and your spouse are untruthful regarding the amount and nature of the assets and properties, the courts will have no choice but decline to implement the marital settlement agreement.

• Mutual mistake- The court may decide not to enforce the marital settlement agreement if you and your spouse signed the agreement without knowing that assets or properties were missing. However, you both can amend the errors by signing an amendment to the settlement agreement and taking the amendment for notarization.

It is always preferable that you and your spouse settle for an outside of court agreement. Failure to agree will most likely end up in courts. This way, the judge will make decisions on all issues. By going to courts, you and your spouse will not have the opportunity to negotiate and come to a common ground. If you need help, please speak to one of our divorce lawyers in New York.

Comments are closed here.