What Is a Divorce Settlement Agreement?
A divorce settlement agreement is a legally binding contract that describes the rights and duties of spouses dissolving their marriage. In some states, it is called a marital settlement agreement. It lets spouses settle divorce terms without relying on a court ruling. Once they sign the agreement, they can submit it to a judge for approval as part of the divorce decree, which officially ends the marriage.
Divorce laws vary significantly by state. Understanding state-specific divorce laws is essential for creating an enforceable divorce agreement.
Divorce Laws to Consider for Your Divorce Agreement
A divorce settlement agreement template covers key issues for couples parting ways. Differences in state law can shape the agreement’s terms. Therefore, spouses using a DIY divorce agreement should consider these differences to create a fair settlement.
Property Division
States follow one of two approaches for dividing marital property when couples divorce. Most states apply a principle known as equitable distribution. Equitable distribution allows courts to divide assets fairly but not always equally. Courts consider factors like each spouse’s contributions to the assets, the length of the marriage, and the property’s sentimental value.
Nine states stray from equitable distribution and instead implement the community property approach. Community property laws demand an equal split of marital assets during divorce. This method doesn’t account for individual circumstances.
For example, consider spouses who purchased a painting during their marriage. In a community property state, they would each have an equal right to it. This situation may require the spouses to sell the painting and split the proceeds in a divorce.
Consider another painting, but suppose a married couple bought it in an equitable distribution state. In this situation, the court has greater flexibility in its disposition. It may award the painting to the spouse who selected it or the one whose income paid for it.
Which States Have Community Property Laws?
These nine states have community property laws:
- Arizona
- California
- Idaho
- Louisiana
- Nevada
- New Mexico
- Texas
- Washington
- Wisconsin
Some states have optional community property laws, including Alaska, South Dakota, and Tennessee.
Alimony
Another key term for a divorce settlement agreement is alimony, which is financial spousal support provided from one spouse to another. This support comes in various forms, amounts, and durations.
A supporting spouse may have to pay alimony in regular installments, either temporary or permanent. Alimony can also be for specific purposes, like helping a spouse gain employment or education. Some courts award alimony to cover certain expenses from the marriage.
Courts award alimony based on state laws and personal factors that relate to the need for or fairness of support after the marriage ends. Common factors that could influence alimony in a divorce settlement include the following:
- disparities in income
- length of the marriage
- one spouse’s accustomed lifestyle during the marriage
- one spouse’s ability to meet their financial needs based on their education, employment history, and other sources of income
Child Support
If divorcing spouses share children, they should decide on child support in their settlement. Child support is an ongoing financial payment from one parent to the other so they can meet the child’s needs. It helps cover a child’s food, shelter, medical care, and education. Many states use formulas to determine the required child support amount based on income, resources, custody, and other state guidelines.
No-Fault vs. At-Fault Divorces
Another factor influencing settlement terms is whether a spouse files for an at- or no-fault divorce. In the past, spouses could usually only divorce their partner if they could show fault. An at-fault divorce can be supported by displays of domestic violence, addiction, or adultery.
Now, most states allow no-fault divorce. In a no-fault divorce, a marriage can end for no specific reason. One spouse doesn’t inflict blame on the other, and they can cite irreconcilable differences.
Cases of at-fault divorce can affect settlement terms, especially if there is a history of addiction or domestic violence. In such cases, the spouse at fault may not receive custody or visitation rights if they are deemed unsafe for the children.
Legal Separation Before Divorce
Legal separation lets spouses live apart while keeping their married status. It can help them consider divorce, reconcile, or prepare for life after divorce. In some states, legal separation is required before filing for divorce. For example, Arkansas requires couples to be legally separated for 18 months before they can divorce (AR Code § 9-12-301).
A separation agreement can help clarify rights and responsibilities during this time.
Waiting Period Requirements
Regardless of legal separation, many states have mandatory waiting periods before a court can officially grant a divorce. In these states, a court can only enforce the settlement after the waiting period passes. These waiting periods can vary in length, ranging anywhere from 30 days to several months. They may extend the divorce timeline, but they also give both parties time to think through their decision.
Residency Requirements
Courts must have proper jurisdiction over a couple’s divorce case to issue a divorce decree and approve a settlement. Each state requires a residency period, usually three to 12 months, before someone can file for divorce.
What Are the Steps in the Divorce Process?
The steps for completing a divorce follow the same process but may vary depending on the spouses’ circumstances. This checklist can help guide you through the process with confidence.
- Review your state’s residency requirements, waiting period, and other guidelines.
- Determine the type of divorce filing (no-fault or at-fault).
- Seek sufficient financial resources and living arrangements during the divorce process.
- File the divorce petition.
- Notify your spouse about the divorce filing.
- Seek temporary court orders concerning custody, financial support, or other matters if necessary.
- Complete and exchange financial disclosure forms.
- Negotiate a settlement to resolve as many issues as possible without court intervention.
- Seek court rulings on unresolved matters for the divorce.
- Wait for a judge to issue a final divorce decree.
If you have questions about how state laws affect your rights or obligations in a divorce, consult a family law attorney.
What to Do Before Filling Out a Divorce Settlement Agreement
Before completing a divorce settlement agreement, consider how the following factors may impact its terms and your rights.
- Review any signed prenuptial or postnuptial agreements.
- Obtain and review a copy of the spouse’s financial disclosures.
- Review state law that may nullify or contradict proposed divorce settlement terms.
- Consider your financial needs post-divorce and how the settlement’s terms would fulfill them.
How to Write a Divorce Settlement Agreement
Our divorce settlement agreement template provides a simple format for spouses to complete with their relevant details. Below, you can see an overview of the writing process for your settlement.
1. List Parties & Marriage Information
The first section of a marital settlement 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 with the divorce petition. You should include both parties’ contact details. Each party should specify whether they’re a United States Armed Forces member.
If you’re a United States Army, Marine Corps, Navy, Air Force, or Coast Guard member, you will be covered under the Uniformed Services Former Spouses’ Act (USFSPA). The USFSPA discusses the treatment of retirement pay, commissary, exchange, and health benefits. It also advises on issues such as child support and spousal support.
A court would consider whether either spouse is an armed forces member when deciding whether the settlement is fair.
Marriage Date and Location
You should specify when you and your spouse got married and the location.
Current Status
Note when you and your spouse began living “separate and apart.” Remember that living “separate and apart” doesn’t necessarily mean the parties must live in different places. At its minimum, it means that they cannot be physically intimate.
2. Provide Spousal Support Information
Specify which party will receive spousal support, the amount, the date payments will begin and end, and whether they can modify it.
If one spouse must pay spousal support, it’s common for the supporting spouse to carry a life insurance policy to guarantee payments if they pass away. The receiving spouse would be named the beneficiary, and the supportive spouse generally must maintain the insurance policy as long as spousal payments are required.
3. Decide on the Distribution of Real Property
Next, you can list whether you and your spouse own the marital home. If the answer is yes, you can dictate joint versus sole ownership and other factors. For example, you can decide on the division of the net proceeds if you sell the marital home. If one party keeps the marital home, you can determine who will pay the mortgage or be responsible for maintenance and major/minor repairs.
In this section, you can divide other real property that doesn’t include the marital home.
4. Divide Bank & Financial Accounts
You and your spouse can agree to divide joint bank and financial accounts. Some accounts to divide include savings, checking, and money market accounts. It’s essential to disclose all accounts to facilitate a smooth marital settlement.
5. Divide Personal Property
If you and your spouse have personal property, like furniture or collectibles, you can divide it in the next section. List the item’s name, describe it thoroughly, and provide its value. Specify which items the respondent and petitioner will receive separately. You can also explain which items the two parties will split.
6. Assign Ownership of Vehicles
Dictate which vehicles the respondent and petitioner will receive. Provide accurate descriptions of each car, including its make, model, color, and year.
7. Outline Outstanding Debts, Charge Accounts, & Credits
Outline who will accept outstanding debts, charge accounts, and credit. If one person assumes a debt, it’s important to note that they’re holding the other party harmless to avoid confusion in the future.
8. Settle Pension & Retirement Plans
Decide whether you and your spouse will divide interests in pension and retirement plans. You can divide these plans equally or allocate a specific percentage to each party.
9. State When the Parties Will File Taxes Individually
List the year both parties will start filing taxes individually rather than as a married couple. Clarify who will pay any penalties or interest on prior joint income tax returns.
10. Restore Either Party’s Former Name
If either party wants to restore their former surname, you can notify them of this change in your divorce agreement.
11. State the Governing Law for Your Agreement
Specify which state’s laws will govern your marital settlement agreement.
12. Include Miscellaneous Details
Near the end of your divorce agreement, you can include any other information that applies to divorce. For example, if you and your spouse have children, you may outline details relating to:
- child support
- child custody
- visitation arrangements
13. Sign the Document
Sign the document yourself and acquire your spouse’s signature. Have witnesses watch you sign the divorce agreement and have them confirm their presence with their signatures. You can also have the document notarized to increase its legitimacy.
What Other Divorce Papers Do I Need?
At Legal Templates, we provide a divorce settlement agreement template to help you address key aspects of your divorce. While it is a crucial document, there are other essential papers required to finalize the process. We’re here to guide you by explaining the other divorce papers you may need. This way, you can navigate the rest of the paperwork smoothly.
- Petition for divorce (or complaint for divorce): A legal request asking the court to end a marriage.
- Proof of service: Evidence that the divorce petition was given correctly to the non-filing spouse.
- Summons: A legal notice of the petition that requires the served spouse to respond.
- Financial affidavit: A disclosure of a spouse’s finances, including debts and income.
- Child custody and child support documents: These documents outline living arrangements, decision-making authority, and financial support for children.
- Child custody evaluation: An assessment to determine custody based on the child’s best interests.
- Divorce settlement agreement: A contract defining the rights and duties of each spouse as their marriage ends.
- Notice of hearing: A formal notice to attend a court session to address specific issues.
- Divorce decree: The official court order confirming the marriage’s end.
How to Get Divorce Papers
Most divorce papers are available online or in person through the state court where you intend to file a divorce petition.
