Write a Divorce Settlement Agreement

A divorce settlement agreement, also known as a marital settlement agreement, is a legal document that allows divorcing spouses to come to an agreement regarding the terms of their divorce. A divorce settlement agreement usually covers such matters as spousal support, child custody and child visitation arrangements, property division, and other issues relevant to the divorcing couple. If a court decides that a divorce settlement agreement is fair to the concerned parties, the court may enter the signed agreement into an order of the court as a final judgment of divorce. A divorce settlement agreement has a number of advantages. Because the parties draft and agree upon the terms of the agreement themselves, they are likely to adhere to the agreement. A divorce settlement agreement should also eliminate or lessen the need for courts to intervene in a divorce.[1]

Steps

Beginning With Preliminary Information

  1. Begin with the names of the parties. As with any other agreement, begin by writing down the names of the parties who will be bound by the agreement. In a divorce settlement, these are the husband and wife. You can begin the agreement, for example, by writing, “This marital settlement agreement is hereby entered between (enter husband’s name), hereinafter referred to as ‘Husband,’ and (enter wife’s name), hereinafter referred to as ‘Wife.’”[2]
  2. Write down the date of marriage. After writing down the names of the two spouses, write down the date that the couple was married. For example, you can write, “The parties were married on (enter date of marriage).”[2]
  3. Write down the date of separation. If the couple’s divorce is preceded by a separation, write down the date of separation. For example, you can write, “Due to irreconcilable differences, Husband and Wife separated on (enter date of separation), are currently living apart from and have agreed to continue living separate and apart from each other.”[2]
  4. Write that husband and wife wish to be bound by the agreement. After covering the names of the parties and the dates of marriage and (if applicable) separation, write that the parties wish to be bound by the agreement. You can write, for example, “Husband and Wife desire to outline their mutual rights and duties arising as a result of the marital relationship. Husband and Wife, therefore, agree to the following.”[2]

Dividing the Property and Debts

  1. Begin with a general statement on property division. Before delving into specifics about division of property and debts, begin with a general statement that says that both parties have determined to their satisfaction the manner in which the property should be divided, and that both are satisfied with the terms of this division.[2] This preliminary statement on the division of property should address the following points and can be written as follows:
    • “Each party has independently determined to his or her satisfaction the extent of property owned by the parties jointly and individually.”[2]
    • “Each is satisfied that this agreement divides all property and assets that should be divided between the parties.”[2]
    • “Notwithstanding contrary provisions of law, any property, asset, or expectancy, be it real or personal, tangible or intangible, vested or contingent, that is not addressed in this agreement is the separate property of the party who now owns or possesses it.”[2]
    • “Henceforth, both parties shall have, own and enjoy, independently of any claim or right of the other, all personal property, including insurance policies and choices in action, which are now owned or held by or which may hereafter be acquired by either party, with full power to dispose of the same as fully and effectually, in all respects and for all purposes, as if he or she were unmarried.”[2]
  2. Write down how personal property is to be divided. You can phrase this division, for example, as follows: “Husband and Wife have divided the property of the community to their mutual satisfaction as outlined below. Each party hereby waives any and all claim to any property in the possession or control of the other, except as listed below.”[2] Follow up this statement with a list of how the property is to be divided.
  3. Write down how the debts are to be divided. Decide how the debts are to be divided between the couple and list exactly who is responsible for discharging these debts.
    • You can begin this section by writing, for example, “Husband shall pay the following debts promptly when due, and indemnify and hold Wife harmless therefrom…” followed by a list of the relevant debts and “Wife shall pay the following debts promptly when due, and indemnify and hold Husband harmless therefrom…” followed by a list of the relevant debts.[2]
    • In listing the debts, list the account number for each debt, name of each account, the balance due on each, and the exact amounts that are to be divided between the parties.[2]
    • If there are no debts or one of the parties will not be contributing towards paying off the debts, write “none.”[2]
  4. Write down if the property and debts are minimal. In those cases in which the property and debts are insignificant or are non-existent, write a statement to that effect. You can write, for example, a statement that covers the following points and is phrased as follows:
    • “Husband and Wife agree that their community property and debts are minimal, and that they have already divided it to their mutual satisfaction.”[2]
    • “Each hereby transfers and quitclaims to the other any and all interest in any property in the possession of the other, and agrees that whatever property they may possess is now the sole and separate property of the other.”[2]
    • “Husband and Wife each promise the other that they shall not incur any debt or obligation for which the other may be liable, including medical and dental expenses, and each agrees that if any claim be brought seeking to hold one liable for the subsequent debts of the other, or for any act or omission of the other, then each will hold the other harmless, and defend such claim.”[2]

Agreeing on Spousal Support

  1. Come to an agreement on spousal support. Decide whether either party will provide the other any spousal support in the form of monetary payment every month.
  2. Write a statement waiving spousal support. If the parties decide that spousal support will not be provided, write a waiver of spousal support. You can phrase this waiver as follows: “Spousal support will not be provided, and henceforth, both parties relinquish and waive any right or claim to spousal support from the other from the date of this agreement forth. This waiver specifically applies to any action and law concerning either party, more specifically any action in divorce, dissolution, or separation.”[2]
  3. Write down the amount of support if applicable. If the couple decides the amount of support that will be provided, write down the exact amount of support and the dates on which the support will begin and end. You can phrase this provision as follows: “Spousal support from Petitioner to Respondent, OR Respondent to Petitioner shall be provided in the amount of (enter amount) per month commencing on (enter date) until (enter date).”[2]
  4. Consider additional terms relevant to spousal support. You may also provide the form in which the support will be paid (e.g. that it will be paid by military allotment if one of the couple is in the military). You can also provide that spousal support will not be paid at present but that the court will retain power to decide upon this matter. You can also adjust the amount of support to change according to specified events (e.g. you can stipulate that support will increase following an increase in income of the payor spouse).[2]

Addressing Child Custody, Visitation Rights, and Child Support

  1. Provide for child custody arrangements. If the couple has children, provide for child custody arrangements in the settlement agreement. Begin by stating the names of the children and their dates of birth, which can be phrased as follows: “The following children were born of the marriage: (enter name of child) born on (enter date of birth); (enter name of child) born on (enter date of birth) ...."[2]
  2. Provide for legal custody. After naming the children and providing their dates of birth, provide for legal custody arrangements. This means you should decide whether the Husband and Wife will both have joint legal custody or only one of the spouses will have legal custody of the children. You can phrase this part as either “Father and Mother will be jointly entitled to legal custody of the children” or “Father/Mother (as applicable) will have sole legal custody.”[2]
  3. Provide for physical custody. After providing for legal custody of the children, also provide for physical custody of the children. This means deciding whether the husband and wife will both have joint physical custody or only one of the spouses will have primary physical custody. You can phrase this part as either “Father and Mother will have joint physical custody of the children” or “Father/Mother (as applicable) will have primary physical custody.”[2]
  4. Provide for visitation rights. The spouse who does not enjoy physical custody of the child will likely wish for there to be a provision in the agreement for the right to visit the children.
  5. Consider when, where, and who will pay for visitation. This includes deciding who will have the kids for holidays, weekends, summer vacations, the right to remove the child from her primary residence, and who is responsible for covering the cost of holidays and other types of visitation.[2]
  6. Include a notification requirement in case of change of residence. It is important for the spouse who does not have primary physical custody to have notice of the change of residence of the other spouse and of the minor children. You can include a phrase in the agreement to cover this scenario as follows: “Neither parent may change his or her residence or the residence of the minor children without 60 days prior written notice to the other parent.”[2]
  7. Declare that the couple is aware of the state’s child support laws. Note that you may provide for child support in the agreement but that that support cannot fall below the statutory minimum set by your particular state. You can phrase a provision for child support to include the following important terms:
    • “We, the Father and Mother each declare that: We are fully aware of our rights and obligations concerning child support under (enter the relevant legislation).”[2]
    • “We make this agreement freely without coercion or duress.”[2]
    • “This agreement for support is in the best interest of our child(ren).”[2]
    • “Our child(ren)’s needs will be adequately met by the agreed amount.”[2]
    • “The right to support has not been assigned to any county, and no public assistance application is pending.”[2]
    • “We understand that if we have stipulated to a child support award below the amount established under (enter relevant sections from your state’s child support legislation), no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.”[2]
    • “We declare under penalty of perjury under the laws of the State of (enter name of your state) that the foregoing is true and correct.”[2] Provide both spouses’ signatures and date of signature immediately after this particular declaration.
  8. Stipulate the amount to be paid and who will be paying until when. You can phrase this provision as follows: “Husband/Wife (as applicable) shall pay to Husband/Wife a total of (enter amount) per month, per child (if applicable) on (enter date) of each month, beginning on (enter date), and continuing until further order of this court or until said child marries, dies, becomes self-supporting, or reaches the age of 18.”[2]
  9. Provide for the basis of the child support determination. Specify what the monthly child support amount is based on. For example, you can write, “The child support agreement is based on the Mother’s gross income of (enter gross income), including Basic Allowance for Housing if applicable, and Father’s gross income of (enter gross income), including Basic Allowance for Housing if applicable.”[2]

Providing for Division of Real Property

  1. Provide for division of real property. Real property means land, houses, buildings, etc. If there is no real property, write, “Neither Husband nor Wife currently has any interest in any real property. Both agree to waive any and all interest in any real property acquired by the other after the date of this agreement.”[2]
  2. Specify how real property will be divided. If there are real property interests, specify how the real property will be divided. This can be phrased as follows: “Husband and Wife agree to divide real property as follows” after which you state the agreed upon division.[2]
  3. Write a description of the real property and waive interest in property acquired in future. In dividing the real property, write the agreed upon terms of division and a proper description of the property in question. A proper description includes the assessor’s parcel number and legal description of said property. Immediately after description of the real property and agreed upon division of it, write that both parties agree to waive any and all interest in real property acquired by the other after the date of this settlement agreement.[2]

Covering Other Miscellaneous Matters

  1. Address life insurance if applicable. You may decide, for example, that both husband and wife agree “to waive any and all rights concerning the designation of beneficiary on any insurance policy of the other.”[2] Alternatively, the agreement may provide for payment of insurance premiums. If so, you can phrase these matters as follows:
    • “Husband/Wife (as applicable) agrees to pay the premiums on and maintain insurance on his/her life payable to the children in the amount of (enter amount).”[2]
    • “The designation of the children as beneficiary under the policy shall be irrevocable, and (Husband/Wife) agrees to execute the necessary documents to make such irrevocable designation.”[2]
    • “No party shall encumber or borrow against such policy without the prior written consent of the other.”[2]
  2. Address tax matters. In particular, address the question of claiming an exemption for children when filing your tax return. If the parent with whom the child lives the majority of the year agrees to allow the other parent, with whom the child does not live most of the year, to claim the child(ren) for income tax purposes, the former will need to fill out IRS Form 8332,[2] available here.
    • Provide for this release in the settlement agreement.
    • This release can be phrased as follows: “Parties agree to co-operate in the signing of IRS Form 8332, Claim to Exemption for Child of Divorced or Separated Parents for releasing the primary custodial parent's right to claim the exemptions on income tax returns.”[2]
  3. Provide for separation and non-interference. Write in the agreement that the husband and wife will from the date of the agreement be free to live separate from each other anywhere either party chooses and further that neither party will “interfere with the decision of the other party regarding his or her choice of abode, nor coerce or attempt to coerce the other to cohabit or have sexual relations with him or her.”[2]
  4. Provide for additional instruments. This means you should write that the parties will from time to time, at the request of the other, “execute, acknowledge and deliver to the other party, any and all instruments that be required to give full force and effect to the provisions of this agreement.”[2]
  5. Declare the agreement to be entire and binding. Write that this agreement “is the entire agreement between husband and wife. Any Amendment or change to this agreement must be in writing and must also be signed by both husband and wife. Except as otherwise stated herein, all provisions in this agreement shall be binding upon the respective heirs, next of kin, executors, and administrators of both husband and wife.”[2]
  6. Provide for interpretation of agreement and partial invalidity. Write that in the event that a particular provision is held to be invalid or unenforceable, that the rest of the agreement shall nevertheless continue in full force and effect. Also provide immediately after this statement that the agreement shall be “construed and governed by the laws of the State of (enter name of state).”[2]
  7. Provide for notification of change of address. Write that both parties will keep each other informed of the addresses and location of their residences and will notify each other of any changes.[2]
  8. Provide for mutual release. Write that subject to the provisions of this agreement, “Husband and Wife mutually release each other from any and all claims and demands, in law or in equity, which either has against the other. If either party institutes an action in divorce or dissolution, or legal separation, both parties hereby stipulate to offer this agreement to the court for incorporation into any decree, interlocutory or final, of divorce, dissolution, or legal separation. Notwithstanding the language and terms of this section, this agreement is understood to have binding effect upon execution by both parties.”[2]
  9. Provide for revocation and disclosure. Write how the agreement can be revoked or modified. For example, you can write that the agreement “may only be revoked or modified by a subsequent written agreement and the replacement of this agreement by a similar written agreement or court order.”[2] Also write that both parties “warrant that they have made no promise, agreement, or understanding, except as set forth above, which was relied upon as an inducement to enter into this agreement.”[2]
  10. Provide for the right to legal advice. Write that both parties acknowledge their right to consult with counsel and of the availability of free legal advice if they cannot afford it. Also provide that the parties agree that it is desirable to seek legal advice before executing this agreement because of the nature of important personal and financial rights involved. Close this section by writing that each party “has read and fully understands each and every provision of this agreement.”[2]
  11. Provide space for signatures and dates. Close the document by providing spaces for signatures of the husband and wife and witness(es), as well as space for dates on which the document is signed. [2]

Warnings

  • Check your applicable state laws. The foregoing should not be read as legal advice. Always seek legal advice from a qualified attorney, as the laws applicable to your particular jurisdiction regarding divorce settlement agreements may be contrary to the advice provided herein.

Related Articles

Sources and Citations

  1. ↑ https://www.law.cornell.edu/wex/marital_settlement_agreement
  2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.25 2.26 2.27 2.28 2.29 2.30 2.31 2.32 2.33 2.34 2.35 2.36 2.37 2.38 2.39 2.40 2.41 2.42 2.43 2.44 2.45 2.46 2.47 2.48 2.49 2.50 2.51 http://www.monterey.army.mil/Legal/family_law/SEPAGHANDOUT%20(2).pdf

You may like

Retrieved from "https://kipkis.com/index.php?title=Write_a_Divorce_Settlement_Agreement&oldid=318998"