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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.
You may review this guide to learn more about how to find reputable separation lawyers or divorce lawyers.
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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 custody refers 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.
This article provides tips on writing divorce papers, a contractual agreement, and how to create a fair settlement agreement.
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.
Meet some of our Divorce Agreement Lawyers
Michael W.
Graduate of Georgetown Law (J.D. and LL.M in Taxation) Injury Claims Adjuster before law school for top insurer Eight plus years of legal experience Past roles: Associate at premier boutique law firm in the DC metro area Policy Associate at a large academic and research institution Solo Practice Areas of Expertise: Contracts Business Formation Trusts and Estates Demand Letters Entertainment Transactions
Mark D.
California-based small business attorney handling matters related to securities, mergers & acquisitions, corporate governance, and other business transactions.
Richard N.
I have been practicing law for 35 years. In addition to my law degree, I hold an MBA. I've created six companies, currently act as outside counsel to another 12, and have been an advisor to more than 500 startups and entrepreneurs.
Donya G.
I am a licensed and active NY Contracts Attorney, with over 20 years of diverse legal and business experience. I specialize in reviewing, drafting and negotiating commercial agreements. My practice focuses on working with small business clients as well as clients from international brokerage firms on acquisitions, especially in the Ecommerce space; drafting, negotiating, reviewing and advising on business agreements; ; breach of contract issues, contract disputes and arbitration. I am licensed to practice in New York and Connecticut, and am a FINRA and NCDS Arbitrator. My experience includes serving as General Counsel to small businesses. This entails reviewing, updating and drafting contracts such as employments agreements, asset purchase agreements, master services agreements, operating agreements and a variety of business and commercial contracts. Additionally, I assist clients with business strategies, contract disputes and arbitration. My diverse experience allows me to give my clients a well-rounded approach to the issues they face. I have been at top AML law firms; a Vice President at an Investment Bank, a Civil Court Arbitrator presiding over cases in contract law, commercial law, a Hearing Officer, presiding over cases and rendering written decisions, and a Judicial Clerk to a Civil Court Judge. It would be a privilege to assist you and your business with my services.
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Carlos C.
Carlos Colón-Machargo is a fully bilingual (English-Spanish) attorney-at-law and Certified Public Accountant (CPA) with over twenty years of experience. His major areas of practice include labor and employment law; business law; corporate, contract and tax law; and estate planning. He is currently admitted to practice law in Georgia, Florida, the District of Columbia and Puerto Rico and currently licensed as a CPA in Florida. He received a Master of Laws from the Georgetown University Law Center in 1997, where he concentrated in Labor and Employment Law (LL. M. in Labor and Employment Law) and a Juris Doctor, cum laude, from the Inter American University.
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Matthew F.
As a business law attorney serving Coral Springs, Parkland, and Broward County, FL, Matthew has been recognized as “AV” rated, which is the highest rating an attorney can achieve through Martindale’s Peer Review system. Year after year Matthew is listed in the “Legal Leaders” publication as a top-rated attorney in South Florida in the areas of litigation, commercial litigation, and real estate. Matthew is also a graduate and instructor of the Kaufman Foundation’s FastTrac NewVenture Program, presented by the Broward County Office of Economic and Small Business Development.
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John B.
John Benemerito is the Founder and Managing Partner of Benemerito Attorneys at Law. Admitted to practice in New York and New Jersey, John represents small business owners and startups in the areas of Business and Securities Law. John received his Bachelors Degree at John Jay College of Criminal Justice where he majored in Criminal Justice. Afterwards, he attended New York Law School where he focused his studies on Corporate and Securities Law. John comes from a family of entrepreneurs. From as far back as he can remember he was always involved in his family’s numerous businesses. At the age of fifteen, John entered into a new business venture with his father and managed to grow and maintain that business through high school, college and law school.John is currently a co founder in over five different businesses. After law school, John decided that he wanted to help people like himself. He opened his own law practice and began working primarily with small business owners until he was introduced into the startup world. Ever since that time, John has worked with hundreds of startups and thousands of entrepreneurs from all different backgrounds in helping them achieve their goals. Having been an entrepreneur his entire life, John understands what it takes to create and maintain a successful business. He enjoys sitting down and working with his clients in figuring out each of their unique challenges.
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