A divorce agreement allows you and your current spouse to negotiate and agree to the terms of your divorce. You likely want to resolve as many issues as amicably as possible, and this document can be the best way to save you a great deal of money, time, and frustration.
When you and your partner have separated, you want to formally agree on how you will handle important issues, such as:
- How you will share assets
- How to handle debts
- Child custody and support issues
- Property division
This guide will help you understand how to put together a divorce agreement and the benefits of formally agreeing to the terms of your divorce.
- What is a Divorce Agreement?
- What Is Included in a Divorce Agreement?
- Who Gets Custody of a Child After Divorce?
- What Are the Benefits of Having a Divorce Agreement?
- Do I Need a Divorce Agreement?
- How Long Does It Take To Finalize a Divorce?
- How To File a Divorce Agreement
- Where To Get a Free Divorce Agreement Template
- Frequently Asked Questions
What is a Divorce Agreement?
A divorce agreement is a formal, written document that outlines all of the agreements between two parties for a divorce. It contains all of the important specifics to both parties and may be required for the divorce to proceed. They are commonly referred to by other names as well, such as:
- Divorce document
- Divorce settlement
- Divorce contract
- Marriage settlement agreement
- Proposed divorce decree
As the divorce agreement is a legal agreement that both parties sign and consent to, spouses are entitled to have the stipulations mentioned in the document considered and enforced in court – if necessary.
However, this document is only one of several documents you need to get a divorce. The terms mentioned in the agreement, while given significant deference, can either be accepted or rejected by the court. If necessary, the court will amend the document before it becomes a court order and is legally binding.
Once the court has ordered the agreement, it can be amended as needed and allowed by law. Either party has to petition the court to modify the agreement if there is a significant change in their circumstances. For example, one of the terms in the agreement can be providing a specific amount of spousal support. If your salary reduces due to changes in your employment, you can petition to modify the divorce agreement to reflect these changes.
However, the other spouse should also agree to these new terms; otherwise, you can be in for a court battle to prove to the judge why the modifications are necessary.
It would be best to agree to terms with your spouse before going to court, as this is crucial to a hassle-free divorce.
What Is Included in a Divorce Agreement?
A divorce agreement typically includes information necessary for the separation of the parties. Getting a divorce is a significant life change for both spouses. The terms contained in the files can help outline your life and dictate the responsibilities each spouse will have following the end of their marriage.
Your agreement should cover everything important to you, including any information discussed below.
Basic Information
Every divorce agreement should contain certain basic information to be legally enforceable. These fundamental elements are essential to a quality divorce contract:
- The names of both spouses
- The grounds for the divorce
- Legal language that makes the agreement enforceable, including jurisdiction, date of separation, and signatures
Ensuring the correct information makes it into the agreement is often difficult without some help. Using a template can help the parties build the document without the assistance of legal counsel.
Property Division Agreements
One of the most contentious parts of a divorce is often dividing property. In most cases, the jointly owned property will be up for debate and can include many types of significant assets:
- The marital home
- Any other real estate owned by the spouses
- Cars and other vehicles
- Personal property
- Account balances and investments
- Retirement benefits and accounts
When you and your former partner agree on terms, you can prevent a protracted legal battle over property, costing a great deal of money. The court will have to distribute these types of property and many others between parties. Financial disclosure may help identify the parties’ assets when making these divisions, and in some states, a sworn affidavit of financial disclosure is a requirement.
Child Custody and Support Issues
When spouses have minor children, determining how they will handle child custody and child support is critical for any divorce agreement. Ideally, you and your spouse would agree on these terms, or a contested hearing in domestic relations court will have to occur.
In that case, the court will choose an arrangement with the child’s wellbeing in mind, based on child support guidelines. These determinations may not be favorable to either party. Instead, parents who can agree on how to handle their children post-divorce are more likely to have these terms accepted by the court overseeing their divorce.
The agreements should discuss aspects like the following:
- Legal custody determinations for each child
- Shared parenting schedules
- Visitation schedules for parents or other relatives, including important holidays
- Amount of child support owed to the other parent if any,
- If there is a deviation from the state-mandated child support amount, you will have to include a detailed explanation.
- Residence requirements for parents and rules on moving residences
- Health care decisions
These and many other aspects of child care are important to detail in the divorce agreement. This document should provide as much detail as possible to protect your rights and get the court’s support.
Who Gets Custody of a Child After Divorce?
Child custody issues are often some of the most hotly contested when parents cannot agree. When the parties contest the terms of custody, the court will decide on the outcome. This course of action typically involves an expensive and lengthy battle over every custody detail, including the primary custodial parent, the amount of child support, and other essential determinations regarding the parties’ children. A contested divorce can put a great deal of strain on you and your children.
Custody disputes between parents are not easy to resolve. In cases where spouses cannot reach an agreement, the court will be forced to impose their plan, and their decision may not be what either spouse or their children prefer.
Based on many factors, a court could decide on any of the following custody arrangements:
- Joint legal custody
- Sole legal custody
- Joint physical custody
- Sole physical custody
Ideally, parents should work to agree on how to parent their children moving forward. Even if you can’t agree on every issue, the more terms you two can agree on, the better the outcome.
Custody Agreements
As part of a divorce agreement with a child, parents who agree on how to parent their children can utilize certain forms to help establish the guidelines they will follow.
These forms can help parents put their agreement about parenting into writing. Any agreement the parents can reach can reduce the total cost of their divorce, prevent familial strain, and improve both spouses’ ability to remain good parents.
A custody agreement allows the parents to work out what is best for them and their children. It can provide you flexibility in handling vacations, holidays, weekends, and much more. A custody agreement can be integrated into your divorce agreement to fulfill the requirements if you have children.
What Are the Benefits of Having a Divorce Agreement?
There are several benefits to creating a divorce agreement. Instead of going through a contested divorce, you can sit down with your spouse and have a calm discussion on how you’d like your divorce to proceed. You can negotiate terms that are convenient for both of you, and once you’re able to reach this outcome, more benefits will follow:
Simplified and expedited divorce. The divorce process is quicker and more efficient due to parties having a mutual agreement on terms. Spouses would only have to go through the minimum waiting period, which varies by state. If you’re unsure about the length of time, check your state’s requirements. An uncontested divorce is the quickest route to separating from your spouse, and being able to agree on terms avoids an emotionally taxing legal dispute between you and your former partner. Contested divorces can lead to expensive court fees, inconvenient court orders, and adverse effects on your mental health.
Ensuring you discuss all details and concerns. Agreements in a court divorce tend to be forced and sometimes even rushed. You may not have the opportunity to mention your problems or have negotiations about debt obligations or property such as heirlooms.
Reduce emotional trauma to children. Contested divorces can get ugly, and having your children involved in a lengthy, contested divorce battle can be an uncomfortable and traumatizing experience for them. When you decide to create a divorce agreement, you or a mediator can create a calm environment where your children have the chance to participate in the process healthily.
Do I Need a Divorce Agreement?
You don’t need a divorce agreement, but if you and your spouse can agree on issues regarding your separation and its related aspects, it’s highly encouraged to create one.
The court will ensure that the agreement is fair and equitable and that arrangements for any children are in their best interests before approving the document.
You should use this document to negotiate terms with your spouse to create the ideal situation for your divorce. The document is crucial to designing a convenient post-divorce life for matters such as property division, debts, child custody, child support, parenting arrangements, alimony, or any other significant aspect relating to your marriage.
How Long Does It Take To Finalize a Divorce?
The length of time it takes to get divorced will depend on whether the parties agree to the divorce terms. In contested divorces, the parties must schedule hearings and file motions on various issues. There may even be the need for a contested divorce trial. This process can be very costly and time-consuming.
Contested divorces may take well over a year to finalize. Spouses must go through the lengthy contested divorce process in court, but the judge will also need time to render their decision.
An uncontested divorce is likely to take much less time. Depending on the laws of your state, spouses who wish to divorce but agree on terms can become legally separated in as little as a few days or as much as a few months. Other jurisdictions may require a more extended period, but nearly every uncontested divorce will take less time than a contested divorce. A well-drafted divorce agreement can help facilitate a quicker end to the divorce proceedings.
How To File a Divorce Agreement
To file a divorce agreement, you must first create the document itself. Once you have completed the document, you should make sure you are happy with its contents and then have you and your spouse sign it and have the document notarized by an impartial third party such as a notary public.
Keep in mind that to proceed with a divorce, you may need to complete and/or file multiple forms, including the divorce agreement, before you can submit it to the court, and the judge can give a final divorce decree:
- Family Court Cover Sheet
- Petition for Divorce
- Decree of Divorce
- Confidential Information Sheet
- Proof of Service Documents
- Waiver and Entry of Appearance
Depending on your circumstances, you may also require the following forms. It’s best to check your state requirements or consult a licensed attorney to determine whether these additional documents are necessary:
- Affidavit of Resident Witness
- Seminar for Separating Parents Certificate (if you and your spouse have minor children)
Once you have completed the forms, you should send them to the county clerk via mail or head over to the District or County Circuit Court Clerk’s office in person. If you need assistance with this process, you should speak with an attorney to help you with the legalities.
Where To Get a Free Divorce Agreement Template
You can use our free divorce agreement template to help you get started or use our step-by-step form builder to help you customize the document to fit your specific needs.
Frequently Asked Questions
Divorce papers help two people get a divorce. Separation papers— also known as a separation agreement— are used by two people who want to separate and live apart but remain legally married. They are designed to handle different separation situations, but both can provide flexibility in managing the end of your marriage. Another difference between the two documents is that divorce agreements do not follow contract law, unlike separation agreements. A divorce agreement isn’t a legally binding document until it is court-ordered by a judge. Are divorce papers different from separation papers?
No, the court typically does not decide who gets what in a divorce agreement. The spouses will specify how they will divide their assets. A court will only step in if the parties cannot agree or if the agreement is not acceptable to the court.Does the court decide who gets what in a divorce agreement?
Yes. You do not need your spouse’s agreement to get divorced. If your spouse fails to respond to your divorce petition within the legally prescribed amount of time, which is generally 20 days, the court will grant you a default divorce. Otherwise, you will have to pursue a contested divorce, which will be difficult, time-consuming, and expensive. Can I get a divorce without my spouse’s agreement?
No. A lawyer is not required to create your agreement, but you may choose to have an attorney review the document to help you get it approved by the court.Do I need a lawyer to help create a divorce agreement?
You can file for divorce in the county where you or your spouse reside. However, there are residency requirements that you must meet to file in any jurisdiction. If you have minor children, specific requirements determine what state has jurisdiction over them, so be sure to check your state laws and interstate child custody laws to determine proper jurisdiction for filing your divorce. Where do I file for divorce?
The grounds for divorce are why you are divorcing (such as irreconcilable differences, general indignities, adultery, etc.). Each state has specific legal grounds for divorce, and some grounds may not be permissible in all states. Also, some states require fault to get a divorce, and some do not. Therefore, you will need to check your state laws to determine the appropriate legal grounds for your divorce. What are the legal grounds for divorce?
You can include life insurance policies in your divorce agreement; however, the document will not have the authority to change beneficiaries on life insurance policies, so make sure you update the beneficiary directly with the insurer of the insurance policy. Can I include life insurance?
