While many people probably imagine that a judge determines the terms of a divorce, the reality is that, in most cases, the terms of the divorce are negotiated and agreed upon by the parties themselves through a process known as an uncontested divorce. The contract that contains all the terms of the divorce is call a "marital settlement agreement", which may otherwise be referred to as a "property settlement agreement" in some instances. A copy of the marital settlement agreement is attached to the final divorce decree and incorporated therein. As such, the terms of the marital settlement agreement create legally-enforceable obligations upon each of the parties.
A good marital settlement agreement should cover each and every term of the divorce, including those that the parties believe don’t need to be put in writing. Usually, a marital settlement agreement contains the following at a minimum:
Courts realize that many marital settlement agreements are hard fought victories, and are reluctant to interfere in agreements negotiated between the parties. However, there are certain situations in which the court will reject a marital settlement agreement in whole or in part. Some situations in which the court may refuse to approve a marital settlement agreement are:
In many cases, the parties are unable to reach a marital settlement agreement on all the issues facing them. For example, the parties may have agreed on everything except who gets the marital residence or who gets primary custody of the children. In such cases, the parties may submit only the unresolved issues to the court for determination, typically in a trial. In such cases, the court will typically rule only on the outstanding issues, leaving the part of the marital settlement agreement negotiated by the parties intact.
While many parties do write up their own marital settlement agreements, it’s a good idea to have an attorney at least look over the terms of your agreement. The main reason for this is that family law attorneys have seen a variety of issues come back to haunt parties who didn’t have air tight marital settlement agreements covering a multitude of contingencies. An attorney will be able to suggest proper legal language, highlight any important terms that you may have missed, and ensure that your legal rights are protected. Ideally, two parties who have reached an agreement would hire an attorney to write up the marital settlement agreement on their behalf, following a detailed list of the terms of the agreement.
However, if you have neither the financial ability nor the desire to hire an attorney, you may want to borrow a copy of a marital settlement agreement from a friend or family member (preferably from someone who is happy with the outcome of their divorce). This way, you will be able to copy the proper legal language and simply plug in your own personal information. Additionally, many courthouses now offer free legal assistance to parties going through a divorce without the aid of an attorney. Volunteers for such programs, who are often attorneys working pro bono, can look over your draft marital settlement agreement and make suggestions for improvement.
Finally, no matter who drafts your marital settlement agreement, make sure that you read, read, and read it again. Highlight any terms and wording that you don’t understand. Do not sign a marital settlement agreement until you are certain that you understand every word on every page of the agreement. Knowing the terms of your divorce backwards and forwards is the most important thing you can do to protect your legal rights in the future.