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What is a Divorce Agreement?
A divorce agreement is a mutual settlement between a marital couple on how to divide and distribute financial and business assets after their divorce.
A divorce agreement may also include terms and conditions of pet and child custody.
The term “divorce agreement” has different names, which may include:
- A divorce settlement agreement
- Custody, support, and property settlement agreement
- Mediated separation agreement
- Marital settlement agreement (MSA)
- Postnuptial agreement
- Separation agreement
This article is a helpful resource that explains different types of divorce forms.
Do You Need a Divorce Agreement Before You Separate?
You will need to file several divorce papers before you can legally end your marriage. You and your spouse must reach a mutual agreement on your separation before a divorce agreement can be finalized.
Separation and divorce are also two distinct terms you should know; a separation takes place before a finalized divorce.
Many states require partners to live separately or follow certain living arrangement conditions for their divorce to be recognized by their state’s law.
This article will help you understand what a legal separation is and how to start the process of ending your marriage.
Do I Need an Attorney to Prepare a Divorce Agreement?
It is best to have all settlement and separation papers written by a divorce attorney.
Using a divorce attorney can ensure that any jointly-owned assets and debts, child custody, and other conditions of your divorce and your affidavit of marriage are handled appropriately according to both parties’ wishes.
Suppose you and your spouse cannot agree on the conditions of your divorce. In that case, a lawyer can help you mediate your agreement and find a suitable compromise.
If your spouse issues you a divorce agreement from their attorney, you can hire one to review the document and suggest modifications you would like to have.
Your lawyer can also identify potentially problematic terms limiting your rights, such as “exclusive possession” and “sole legal custody.” These terms have profound implications that can impact your legal rights as a parent or property owner.
Having a divorce attorney review, write, or edit your divorce agreement is the best way to ensure the end of the marriage is beneficial to both spouses.
What Should Be Included in a Divorce Agreement?
It is helpful to think of a divorce agreement as a legally binding contract between you and your spouse.
By establishing a framework for your divorce terms and conditions, you can legally end your marriage while minimizing personal losses and damages.
If you have children together, a divorce agreement can help you establish a child custody agreement that promotes your child or children’s best interest.
Your divorce agreement should include basic details about you and your spouse, such as:
- Your legal names, the date you were married, and the date you separated or intend to separate.
- Children you have together and where they will live.
- Bills, debts, and assets, and how they will be managed and distributed.
If you signed a prenuptial agreement, then there are already clear divisions in place as to which assets will remain entirely yours and which will be divided evenly between you and your spouse.
Couples must mediate to find suitable arrangements for both of them. At this time, a lawyer can be helpful to act as a mediator when you and your spouse do not see eye-to-eye.
If your spouse issues you a divorce agreement, you do not have to sign it. Instead, this contract is a proposal you are legally free to openly negotiate until reaching a suitable mutual settlement.
Below are additional details you may wish to include in your divorce agreement.
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Item 1. Child Custody
It is important to establish how custody will be shared between parents after their separation. You should specify who the children will live with (their primary residence) and visitation rights.
There are different types of custody to be aware of:
- Physical custody: Physical custodyrefers to where a child lives and who cares for their needs. The child's parent has full physical or sole physical custody. The other spouse is non-custodial and has visitation rights.
- Legal custody: Legal custody includes the right to be a key decision-maker in a child’s life, such as where they will attend school, what types of vaccinations and medical treatments they receive, and a religion they will follow.
In most cases, one parent has sole physical custody, while both parents share joint legal custody. This allows each parent to still actively play a role in a child’s welfare while providing a safe and stable home environment.
All the types of child custody differ by state, so an attorney can help clarify any questions and ensure your agreement adheres to state regulations.
Item 2. Child and/or Spousal Support Payments
The agreement should specify how much you or your spouse will pay in child support and/or spousal support and on what basis.
State requirements for child and spousal support will vary depending on income and location.
The amount of support and duration of payments will need to be laid out in the contract before you divorce.
An attorney can ensure that any amount requested by a spouse is legally fair; in other words, a parent or spouse should not be paying an excessive amount of money, nor should they absolve any financial responsibility they have toward their former partner or children.
Item 3. Childcare Costs
Beyond child support, any additional care requirements for children need to be addressed.
For example, if a child attends daycare, participates in extracurricular activities, or has medical needs, calculate the estimated cost of care per year (or quarter) and explain how you and the other parent will share these expenses.
Item 4. Property Settlements
If you and your spouse are both on a mortgage agreement, you must decide who will remain in the home and assume responsibility for its expenses.
Some couples decide to leave a house entirely to a spouse and children. In contrast, others agree to sell a property and split any profit.
Both parties must agree on what will be done with any shared properties before a sale occurs.
Additional property and its division must also be stated. For example, what will happen to a vacation home, car, motorcycle, or boat?
List any and all property you and your spouse share or want to retain sole possession of.
Item 5. Pensions, Retirement, and Health Insurance
You must specify how you divide any shared retirement plans and health insurance policies you and your spouse share. If you are removing them from your insurance plan, this must be written out.
You should also address how your child’s health insurance coverage will be altered (if at all) by your divorce.
Item 6. Pet Custody
If you share pets, it is helpful to specify who will retain ownership of the animals. You can also address the cost of care, veterinary bills, and even visitation rights.
How to Write a Divorce Agreement
You can find online templates for divorce agreements that simplify drawing your contract.
It is best to work with a divorce attorney to ensure that your agreement contains the proper legal terms and requirements according to your state’s divorce laws.
This sample is a good starting point for what your divorce settlement agreement might look like.
Things Often Overlooked in Divorce Agreements
The most commonly overlooked elements in a divorce agreement are:
- Retirement plans
- Joint savings accounts
- Investment portfolios
- Estate planning
- Retirement assets
- Credit cards
- Taxes and other bills
You should be mindful of combing through every aspect of your finances during a divorce. If there are any areas where you or your spouse’s costs intersect, address them in your divorce settlement.
This article offers several mistakes to avoid during a divorce settlement.
Get Help With a Divorce Agreement at ContractsCounsel
If you are going through a divorce and need an expert divorce attorney, we can help.
The ContractsCounsel directory helps you connect with qualified family lawyers to handle your divorce settlement needs. They can also review other divorce papers to ensure you and your spouse are able to legally separate with as little stress and conflict as possible.
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