Filing an Uncontested Divorce: Negotiation and Settlement Agreements

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Step Three: Negotiating the Settlement

Once your spouse has been served with a copy of the Petition for Divorce, it's time to begin attempting to negotiate an agreement. This is one of the more difficult parts during divorce, because in most cases the parties have a difficult time agreeing on certain issues, espescially if there is any ill-will between spouses. Major issues that need to be resolved include the following:

  • Child custody
  • Child support
  • Visitation
  • Spousal support
  • Who gets the martial residence?
  • How will the financial accounts be divided?
  • How will the marital debt be divided?
  • How will taxes be divided before the divorce is final?

In the event that you and your spouse are unable to reach an agreement on the main issues in your divorce, you have several options for getting assistance. First, hiring attorneys can often move both sides past an impasse and towards resolution. Second, mediation is a valuable resource wherein an impartial professional mediator attempts to secure a fair resolution for the parties. Finally, as a last resort, you can take your divorce to trial and have a judge rule on the unresolved issues.

Step Four: Marital Settlement Agreement

Once an agreement has been negotiated by the parties, the agreement is reduced to writing in a contract that contains all the terms of the divorce. This contract is called a "marital settlement agreement." 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. The main points that must be included in a marital settlement agreement include:

That the agreement was entered into freely and voluntarily by each party;

  • Custody (legal and residential)
  • A visitation schedule
  • Child support
  • Spousal support (the amount or a statement that it has been waived);
  • The distribution of the financial assets (including retirement accounts);
  • The distribution of the marital residence;
  • The distribution of the marital debt.

Step Five: Finalizing Divorce in Court

The last step in finalizing a divorce is "proving up" the divorce at a hearing. Such hearings are typically very short, often taking less than five minutes. At a prove up hearing, the court will briefly review the marital settlement agreement and ask both sides if they understand everything contained in it. The court will then ask both sides to state that they entered into the marital settlement agreement voluntary and not under duress. The court may ask the parties or their lawyers some brief questions about the terms of the agreement. Once the court is satisfied that that the marital settlement agreement is fair and voluntary, she will sign the divorce decree and the divorce will be final.

While every state and county requires different forms at a prove-up hearing. typically, the following documents are needed:

  • Several copies of the marital settlement agreement;
  • A copy of your child support order;
  • Photo identification;
  • A copy of your spousal support order, if any;
  • A copy of the quit-claim deed to the marital residence, if necessary.

Pro Se vs. Hiring a Lawyer

While it is certainly possible to secure a divorce without the aid of an attorney, there are pros and cons of proceeding as a pro se litigant. For example, while you may save a significant amount of money in foregoing an attorney, you may not receive as much child support, spousal support, or assets are you are entitled to. And while attorneys can, in some situations, add fuel to the already smoldering fire of a divorce, they are also treasure troves of alternative ideas and negotiating tactics. Additionally, if your spouse hires an attorney and you do not, you may find yourself at a distinct disadvantage at the bargaining table. Moreover, if you and your spouse plan on hiring only one attorney between the two of you to draft a marital settlement agreement, you should be aware that attorneys, under law, can represent only the interests of one client. This means that if your spouse hires an attorney, even if only for the purpose of drafting paperwork, his attorney is obligated to advise him alone of his rights and obligations.

The best way to proceed through a divorce is with a competent and experienced family law attorney by one's side. However, many litigants simply do not have the financial wherewithal to hire a private attorney. In this case, the best place to start seeking legal assistance is in the domestic relations division of the court clerk's office. In addition to knowing private attorneys who may take divorce cases pro bono or for a reduced fee, many courthouses have volunteers who assist pro se parties in drafting the requisite legal documents and helping them through the divorce process.

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