1. What is a Divorce Agreement?
A Divorce Agreement is a written document that outlines, with specificity, all the agreements between two parties concerning the division of their property, assets, debts, and arrangements for the custody, care and support of their children, if any.
It is important to use what’s called an enforceable document in the event either party fails to hold up their side of the agreement. It cannot merely be a list of items split up between each one with their signature. It must conform to specific requirements, which vary between each state.
When in doubt, you should always consult with a qualified legal professional in your state.
A good Divorce Agreement will identify the following basic elements:
- Parties: the two spouses should be identified
- Grounds: the reason for the divorce should be stated
Property: the division of all property, including assets and debts
all community property and a confirmation of any separate property
- Children: arrange for the custody, care and support of children involved
- Agreements: include indemnities and other agreements, such as tax provisions
- Legalese: use enforceable language
As a reference, a Divorce Agreement is known by other names, depending on each state:
- Divorce Settlement Agreement
- Final Decree of Divorce
Divorce Agreement Sample
The sample divorce agreement below details a settlement agreement between a petitioner and a respondent. The two parties agree on their intentions toward property and financial matters after their split.
2. When a Divorce Agreement is Needed
A Divorce Agreement is used when two parties have already decided on all the issues, including how to divide their property and how to divide time, care, control and support of any children. This may be done before their marriage, by a prenuptial agreement, or it can be done between the parties upon deciding to divorce.
Regardless, it is used only when the parties have agreed on all issues, and do not require court intervention to ‘make a call.’
The court will still need to approve of all agreements reached between the parties, particularly if there are children involved.
Ensure that the division of property is fair and equitable to both you and your spouse, and that you feel the arrangements for your children are in their best interest. Doing so will decrease the risk of the Court rejecting your agreement.
3. When to Use a Divorce Settlement Agreement
You should use a Divorce Settlement Agreement when:
- you know where your spouse is and you are in contact with him or her
- you and your spouse are currently negotiating your divorce and you each wish for a plan for the division of property
- you and your spouse have decided to divorce and you have already agreed how to divide property and assets
- you and your spouse plan to meet with an attorney together and want to prepare with an outline for the division of property
4. Why You Should Use a Divorce Agreement
Without a Divorce Agreement, the parties must rely upon their ability to present a case to a Court, and must accept the judgment from either a judge or jury. This involves a great deal more risk, as very often neither party gets what he or she wants. You cannot control what the jury or judge decides.
Additionally, when parties cannot agree, they often incur a great deal of legal costs, and typically require an attorney. Most parties are able to utilize a Separation Agreement without having to hire attorneys for long, protracted periods of litigation, and often results in lowered court costs and filing fees.
It is important to list out all property (including gifts, inheritances, and real property). Failure to disclose property could result in undivided property, leaving the door open for future litigation.
Some states utilize a ‘community property’ regime, and others are strictly ‘separate property’ states. You should ensure you are aware of the regime within your state, and how it affects you, by speaking to a qualified legal professional.
5. What to Include in a Simple Divorce Agreement
A simple Divorce Agreement should generally have at least the following:
- Who: The parties, their attorneys, the children (if any) and any representatives appointed for the children (although this is less likely in an agreed divorce).
- What: Division of the property, debts, and access to the children, including orders for custody, visitation and support.
- Where: It should always list the jurisdiction of the Court (typically the county and state in which you are divorcing).
- When: It should also always have the date of the divorce, signed by the judge.
- Why: A decree must always declare that the parties are divorce, and it should list the grounds. Typically, in an agreement, it will be on the grounds of insupportability, or inability to reconcile differences, or language similar to that.
- How: The decree should be specific so that the parties (and the Court) are aware of how the property is to be divided, who gets what, when, and how the children and their needs are to be provided. This may also include specific closing documents, such as Special Warranty Deeds and Powers of Attorney. There should be a date and time certain for the execution of any and all closing documents.