A divorce agreement is a written document that details the arrangement two divorcing spouses have concerning the division of assets, spousal support, and if applicable, child support and child custody.
You may want to use a divorce agreement if, for example, you and your partner have separated and want to formally agree on how you will divide property, any debts, and any childcare responsibilities as you divorce.
What is a Divorce Agreement?
A divorce agreement is a written document between separating spouses 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, once their divorce becomes final.
A divorce agreement may be known by other names, including:
- Divorce Settlement Agreement
- Divorce Settlement
- Divorce Document
- Divorce Contract
- Marriage Settlement Agreement
- Proposed Divorce Decree
How to Write a Divorce Agreement
Step 1 – Provide Parties and Marriage Information
The first section of a divorce agreement should contain the details of both parties and their marriage.
Petitioner and Respondent Information
The petitioner is the spouse who filed the divorce petition. The respondent is the spouse who has been served the divorce petition. You should include the contact details of both the petitioner and respondent. Each party should specify whether they’re a member of the United States Armed Forces.
If you are a member of the United States Army, Marine Corps, Navy, Air Force, or Coast Guard, you will be covered under the Uniformed Services Former Spouses’ Act (USFSPA). The USFSPA provides guidance on how to treat retirement pay, commissary, exchange, and health benefits. It also provides guidance on issues such as child support and spousal support.
A court would consider whether or not either spouse is a member of the armed forces when deciding if the settlement is fair.
Former Name
If one party would like to restore their former or maiden name, they can make that request in this agreement.
Marriage Date and Location
You should specify when you and your spouse got married and the location.
Current Status
For no-fault divorces, some states require that the parties have been living “separate and apart” for a certain amount of time before a divorce can be granted. Establishing the date of separation in this agreement can help establish this period if required.
Keep in mind that living “separate and apart” does not necessarily mean the parties have to live in different places. At its minimum, it means that they cannot be physically intimate. A lot of times one spouse is monetarily disadvantaged in the relationship so it’s not always possible to live separately until the divorce has been granted.
Step 2 – Provide Spousal Support Information
Spousal support, or alimony, is payment from one spouse to another after a separation or divorce. Spousal support allows the receiving spouse to maintain the standard of living they had during the marriage.
Specify which party will be receiving spousal support, the amount, the date payments will begin and end, whether it can be modified,
If one spouse must pay spousal support, it is common practice for the supporting spouse to carry a life insurance policy to guarantee payments if they die. The receiving spouse would be named the beneficiary, and the supporting spouse generally must maintain the insurance policy for as long as spousal payments are required.
Step 3 – Add Children Information
Mention if the parties have any children under 18 or whether they are expecting any children. You should also include the custody arrangement between the parents have:
- Sole legal and physical custody
- Shared legal custody and primary physical custody
- Shared legal and physical custody
- Sole legal and shared physical custody
Legal custody determines which parent has the right to make decisions regarding the child(ren)’s upbringing, such as medical care, education, and religious affiliation.
If a parent has sole legal custody, the parent can make unilateral decisions regarding the child(ren) without consulting the other parent.
Unless one parent is deemed unfit or incapable or it is impractical, courts will not grant one parent sole legal custody.
Physical custody determines which parent the child(ren) will live with. The parent with physical custody provides day-to-day care.
Primary physical custody means that one parent will have custody of the child(ren) most of the time. This parent is known as the “custodial parent.”
The “non-custodial parent” is given visitation rights to spend time with the child(ren) on a regular basis.
If parents share physical custody, they will arrange a schedule to share the child(ren) 50/50, or as close to that as possible.
Keep in mind that certain custody arrangements have tax implications. For example, if custody is shared between the parents, they must decide which of them will be able to claim any minor children on their tax return.
Step 4 – Agree on Visitation Arrangements
Visitation gives the non-custodial parent the right to have regular visits with their child(ren). If the parents have shared physical custody, the non-custodial parent will be entitled to regular visitation. Even if one parent has sole physical custody, the non-custodial parent will still be granted regular visitation, unless there are extenuating circumstances.
The visitation schedule can include overnight weekday visits, certain hours on the weekends, and/or certain holidays and celebrations.
Step 5 – Decide on Children’s Expenses
Children’s Medical Insurance
You should discuss with your spouse which one of you will be responsible for your child’s medical insurance and how any medical expenses not covered by the insurance will be paid.
Child Support
Child support is monthly payments made by one spouse to the other spouse to cover the financial needs of any children they may have. Both parents should support such children, and courts can obligate one party to pay child support.
Each state has child support guidelines that help guide how much a spouse should pay. Child support amounts based on these guidelines help the court determine whether the amount is fair. Although the parties do not need to use the guidelines, if a court is asked to approve the agreement, it may ask for the basis of how the amount was determined.
Children’s Tuition Expenses
You can include provisions for tuition expenses for your child. You can specify who will be responsible for paying for their private school or college tuition and expenses.
Special Rights and Responsibilities
Special rights and responsibilities are agreements between the parents regarding the care of the child(ren) and any actions to be taken (or not to be taken) while the child(ren) are in the care of the other party.
For example, you can specify that neither parent is allowed to encourage their child to refer to another person as ‘Mother’ or ‘Father’ while they’re divorced.
Step 6 – Add Property Information
Real Property
This section is about the marital home. The marital home is the home the couple lived in together when they were married. When the parties separate, they will need to decide what to do with the marital home. The parties can agree that:
- One party will keep the marital home and be the sole owner
- They will sell the home and split the profits
- They will continue to own the home jointly, and one party will continue to reside there
Personal Property
Smaller items such as furniture, accessories, pots and pans, and diningware are usually divided in advance among the parties and referred to in the agreement. These are generally less valuable items.
However, larger and more valuable items of personal property can be divided in the agreement. Items such as a painting, crystal chandelier, vintage dining table, or other items of value that may be a source of contention between the parties or has significance for one spouse can be agreed upon and divided in the agreement.
Vehicles
If the parties jointly own vehicles, they should decide how they will be split in the divorce and how the vehicle note, if applicable, will be paid.
Step 7 – Provide Debts, Accounts and Tax Information
Bank and Financial Accounts
If you and your spouse share a joint banking account, you should fill in the account details here. A joint banking account is a checking, savings, money market, certificate of deposit, or other account held at a financial institution in the name of both parties. The parties will have to decide how they want to divide any joint banking accounts.
Outstanding Debts, Charge Accounts and Credits
Make an agreement with your spouse on who will be responsible for any outstanding joint debts and provide details of the debt in the document.
Pensions and Retirement Accounts
Spouses may also be entitled to a portion of the other spouse’s pension and/or retirement plans, which are accounts created or opened in the present to replace income upon retirement. If money was paid into the account while the spouses were married, it might be considered part of the marital estate. Examples of such plans include Individual Retirement Plans (IRAs), 401(k)s, and profit-sharing plans.
Decide if you or your spouse will divide any interests in the pension and retirement accounts and provide the details of the retirement accounts of the relevant parties.
Income Tax
When it comes to income tax, you and your spouse need to decide on when both of you will start filing individual tax returns. It can be at the beginning of a certain year or when the divorce decree becomes final. Additionally, discuss who will be responsible for any deficiencies from prior joint tax returns.
Step 8 – Add in the Final Details
Waiver of Payment through Clerk
In some states, spousal support by default is paid through a Central Depositary Payment Program or a court clerk, direct deposit program, or other third party. Such a system allows the court to ensure that payments are being made.
The parties can waive the right to have payments made through a Central Depositary Payment Program, and instead, agree to make payments directly to each other.
Additional Provisions
This section is your opportunity to add any further terms to the agreement that wasn’t mentioned in the prior sections.
Witnesses & Notary Acknowledgements
You don’t need to have any witnesses sign the agreement. However, having witnesses sign the agreement will help prove the authenticity of the agreement, should that ever be questioned. Be sure to check your state’s laws regarding any witness requirements.
You should get the agreement notarized by a notary public.
Filing
Divorce agreements are filed with the court, and the court must approve the agreement before granting a final divorce decree. The agreement is usually merged into the final divorce decree, where it becomes enforceable by the court.
If you do not merge it into your final divorce decree, the agreement is like any other legal agreement between you and the other party and enforceable in the same ways. A divorce agreement filed with the court is generally called a Marital Settlement Agreement.
Lastly, add the agreement date, and you will have finished writing your Divorce Agreement.
What Should be Included in a Divorce Agreement?
When writing a divorce agreement, whether on your own or with a free divorce agreement template, the agreement should have at least the following: In addition to the above, you should also consider adding the following: Include a schedule that is as accurate as possible as it will determine how your child(ren) will share time between parents and homes. Accurately set out how much each spouse earns and break down your child’s living expenses into an exact list. This detailed accounting will uphold the child support payment decisions you have made in your divorce agreement. Consult your state child support guidelines and child support laws to determine appropriate child support calculations. Include a provision requiring the spouse who is paying a support obligation to maintain a life insurance policy in your name in an amount that will support their family in the future. Specify who is responsible for carrying life insurance for the minor child(ren) Indicate which party should be awarded each asset and who is responsible for paying bills and debts when dividing property. Typically the courts will default to dividing debts and assets equally if no other appropriate arrangement is proposed. If the parties own real property, like a marital residence, it should be awarded to one spouse, or the parties can agree to sell the real property and split the proceeds. Real property can include any homes, rental properties, land, etc. It may be more convenient to structure your agreement using our free divorce agreement template. You can also use our step-by-step builder where you can enter information related to your divorce and have the agreement created for you. Once you have created the document, you should consult a legal professional to ensure the divorce agreement conforms to the requirements of your state. Who
Where
When
What
Why
Additional documentation
Comprehensive Parenting Time Schedule
Child Support Decisions
Life Insurance
Health Insurance
Division of Debts and Assets
Real Property
Tips for Writing a Divorce Agreement
Consider Using a Mediator
As you write your divorce agreement, consider whether mediation would be a suitable option for you. Discussing issues with an impartial third party can help resolve them quicker, and you can avoid having the divorce process drawn out in court. Also, depending on the age of your children, mediation could help your kids have a say in their custody arrangements. Speaking frankly with either parent may be too difficult for them. Using a mediator may result in more honest responses and ultimately lead to you creating an agreement that satisfies the entire family.
Fully Disclose All Information
When writing your divorce agreement, it’s essential to list all assets (including gifts, inheritances, and real estate property). Failure to disclose all of your assets could result in future litigation where you could be fined and potentially transfer ownership of the asset to your spouse as a penalty.
Consider that some states go by community property laws, and others are strictly separate property states. Before writing your joint divorce papers, consider consulting with a qualified legal professional to ensure you are following state laws regarding divorce.
Sample Divorce Agreement Template
Below is a screenshot of the start of a typical sample divorce agreement.
Divorce Agreement
Divorce Agreement Frequently Asked Questions
What happens if you violate a divorce agreement?
If a spouse does not follow the provisions mentioned in the divorce agreement, the other spouse may have the right to file a motion for contempt. The judge will then assess the circumstances and decide whether the spouse indeed violated the orders in the decree. In which case, the judge might impose penalties such as a hefty fine or even jail time.
Can I create my own divorce papers?
Yes, you can create your own divorce papers. When the division of property is fair and reasonable with acceptable custody, parenting times, and support arrangements, you can move ahead with creating your own divorce papers. The papers are usually just a formalization of the initial separation or divorce agreement already in place. However, it’s suggested you have an attorney review the documents before going to court.
Can a divorce agreement be overturned?
Yes, you can overturn a divorce agreement. However, there are only two instances where this would be allowed:
When there has been a change in your circumstances and the terms of the agreement no longer reflect your situation, you can request a post-judgment modification. For example, if you’ve suddenly lost your job and can’t keep up with child support payments. If the change is to do with property division, the court will usually not amend the agreement.
Alternatively, you can file an appeal if you think the judge has made a mistake, like overlooking evidence, or disagree with their findings. You can only file the appeal within 30 days of the judge signing the document, and you will be required to prove that the judge made a mistake.
What paperwork do I need to file to ask for a divorce?
You should check with your state and country to determine what documents may be required, as they can vary by state. For example, some states will need you to provide Affidavits of Financial Means or Confidential Information Sheets. But the most common documents are:
- Dissolution of Marriage Petition
- Settlement Agreement
- Parenting Plan (if you have children)
- Court cover sheet if needed
- Summons to be served on your spouse (petitioner serves the respondent who has a certain number of days to respond, or a default judgment may be given)
Read our article on the forms you need to file for divorce for more information.