If your marriage is over, it’s usually far better to reach a marital settlement agreement with your spouse than head to court for a full trial. It’s cheaper and your fate remains in your own hands -- you don’t have to let an impartial judge decide things that will affect your family dynamics for years to come. If you have a lot of assets or debts, you might want to consult with an attorney before creating an agreement, but otherwise, it’s typically not all that difficult to draft one on your own -- many divorcing couples do.
Negotiate the Agreement
Before you can create an agreement, you must agree on the terms. If your divorce is amicable and you and your spouse are pretty much on the same page regarding how to end things, it might just be a matter of wrapping up a few loose strings. If you’re not, consider hiring a mediator to guide your negotiations without taking sides. A mediator can help you to reach a middle ground. Courts typically require that you reach an agreement on every detail of your divorce if you’re going to avoid going to trial. This means addressing every credit card, every asset, parenting time with your children, child support and spousal support. The devil is in the details. The more you include, the less likely it is that you’ll have problems with your agreement years down the road.
If You Have Children
Child support is an important component of your agreement if you have children. All states have child support guidelines and you can’t pull a dollar amount out of thin air without doing calculations based on the rules in your jurisdiction. Go online to your state’s court website to see if it offers child support worksheets. You can also usually get fill-in-the-blank worksheets from the court. Otherwise, visit a local attorney and ask her to crunch the numbers for you according to your state’s guidelines. After you settle on an amount of child support, include terms for when and how it will be payable and when it ends. You must also come up with a parenting plan that provides for custody and visitation terms, and some states require that you submit this as a separate document.
Decide Property, Debt and Alimony
Your next step is to decide who gets what property, who will pay which marital debts, and if one of you is going to receive spousal support from the other. You have more leeway with alimony than child support -- most courts allow you to agree to any amount or duration that suits you. Look into how your state divides marital property and debts when spouses go to trial. This will provide you with some guidelines to work within. Some states follow community property laws, dividing things right down the middle. Others distribute property in a way the judge decides is fair. But your marital settlement agreement can override state law, so it’s OK if your agreement isn’t a mirror image of what the court would do. The judge will just want to ensure that it’s not grossly unfair to either of you.
Submitting the Agreement to the Court
When it comes time to draft your agreement, go back to your state’s website. You might find a format there to follow. Marital settlement agreements require certain language for enforceability, so if you can’t find a template, you might want to take the terms of your agreement to a local attorney so he can structure it for you properly. After you and your spouse sign it and have your signatures notarized, you can submit it to the court. If the judge approves it, he’ll incorporate it into a final divorce decree or judgment. You might have to attend a brief hearing where the judge asks if you think the agreement is fair and if you signed it voluntarily. If you can’t agree on every single detail regarding your divorce, you can still submit the details of what you have mutually decided and let the court deal with outstanding contested issues at trial.