In recent times, many couples are beginning to opt for a more amicable divorce through a divorce settlement agreement. This agreement helps spouses save a lot of time, money, and trouble while also setting a smooth post-divorce transition process for any existing child of the marriage.
In the article below, we’ll explore the subject of divorce settlement agreements.
What is a divorce settlement agreement?
A divorce settlement agreement, also known as a “separation agreement,” is essentially a contract between divorcing spouses that spells out exactly how much each party will receive and any children’s custody, visitation, and financial support arrangements. These agreements can be difficult to negotiate but are often worth the effort in ensuring that both parties are happy with the final outcome of their divorce.
Advantages of a divorce settlement agreement?
At its core, a divorce settlement agreement helps spouses better deal with the issues resulting from their subsequent divorce. Rather than go through nerve-wracking legal proceedings, a divorce agreement;
- enables cheaper divorces by saving legal costs;
- allows for a swift divorce process by saving time that could be spent in court proceedings;
- Grants spouses greater control over their post-divorce outcome;
- Allow for greater privacy by preventing messy divorces; and
- Preserves relationships between spouses post-divorce, which could positively influence their children’s mental health.
What is regulated in a divorce settlement agreement?
With a divorce settlement agreement, spouses are expected to sign rules and regulations that determine their financial standings and physical responsibilities post-divorce. In practice, this agreement would regulate all property law matters, such as the division of assets (marital savings, household assets) in the event of a divorce are clarified, and all arrangements for spousal maintenance (separation maintenance, post-marital maintenance).
Note: Divorce settlement agreements regarding child support, custody, contact, and visitation rights must be recorded in writing.
What is regulated in the divorce settlement in the case of joint children?
If the couple has children together, then all the necessary aspects of the divorce settlement must be settled. These include, above all, alimony, custody, and contact rights issues. In all regulations, the focus is always on the child’s well-being. If the child’s well-being is endangered, the court would decide against the agreements made in the divorce settlement.
Custody includes the right and duty to represent, care for, bring up, and manage a child’s property. In the case of joint custody, each parent exercises their right of representation to the full extent. In the divorce comparison, there are different ways to regulate custody.; They include;
Joint Custody: Both parents have custody. The child lives with the main caring parent. This parent can determine the place of residence. Alimony for the child is paid to the main caring parent.
Sole custody: Sole custody can also be determined in the divorce settlement. Here, only one parent has custody. In this case, legal representation falls solely to the parent with sole custody.
Limited custody: In a divorce settlement agreement, it can also be agreed that custody of one parent is limited to certain matters. However, the child must live with the parent who has primary custody.
Visitation and contact rights
Divorce settlement agreements can also be made regarding visiting and contact rights. In this case, it would contain agreed provisions relating to;
- The duration of each visitation and contact; whether there would be a sleepover for younger children or not ;
- Then handover location, pick-up, and drop-off times.
- Regulations for special days and holidays (Christmas, birthdays)
.Note: The right to contact exists independently of the fulfillment of the maintenance obligation. (i.e., failure to pay upkeep, school fees, etc.). Also, in the event of discrepancies regarding the right of contact, the court can be contacted
When negotiating a divorce settlement agreement, a spouse who has agreed to pay alimony must also factor in child maintenance. In this case, the child’s minimum needs must be considered. If the settlement agreement fails to comply with the above, a court will reject the divorce settlement. The following aspects can be regulated under alimony:
- The specific amount of alimony; and components of the assessment basis (net income of the maintenance debtor).
- Duties of care
- Alimony due date
- Whether and to what extent additional costs will be paid (skiing holidays, music lessons).
In a divorce settlement agreement, maintenance claims of spouses are also regulated. Similar to child support, partial aspects of spousal support can also be regulated, and it can be agreed on when, how, and to what extent the costs will be covered. The following aspects can be regulated under spousal maintenance:
- The specific amount of spousal maintenance and components of the basis of assessment (net income of the breadwinner).
- duties of care and concern
- due date
- To what extent will additional costs be paid (medical interventions, further training).
The division of assets is also regulated in a separation agreement. This is notable through the distribution of marital savings (building loan contracts, shares, insurance), marital assets (cars, furniture), debts, and loan liabilities.
Can you appeal or contest a divorce settlement agreement?
Yes, you can contest a divorce settlement agreement. Certain situations allow for a divorce settlement agreement to be contested. For instance, if assets are concealed by a spouse during negotiation resulting in its omission, a divorce settlement can be contested. To put this into perspective, assuming Mr. Briggs does not tell Ms. Briggs when the marital assets were divided up that he had earned additional income, Ms. Briggs can contest the divorce settlement.
Also, If a spouse uses threats to get the other spouse to sign a divorce settlement agreement, the threatened party can contest the divorce settlement.
Note: A partial challenge can also be made if the remaining aspects of the divorce settlement are legally correct. In this case, the aggrieved party would only challenge the part of the agreement where they seek redress.
It is important to have a separation agreement or divorce settlement notarized to ensure its legality. As a rule of thumb, spouses should also seek adequate advice during this process of writing a divorce settlement agreement. If you are considering a settlement agreement, you should contact an experienced attorney to help you through the process.