A marital settlement agreement articulates the understandings between spouses in divorce. It reflects the agreements on each of a variety of separate issues arrived at by the parties through their legal counsel and, possibly, with the help of mediators or decisions by the court. The document serves as a written record of this understanding so that any future violations can be identified and remedied. It also gives the parties peace of mind in knowing how all the important issues related to their divorce will be settled and, since they are reviewed by a court, that the terms are consistent with state law.
The types of issues addressed in a marital settlement agreement include child custody and visitation, child support, alimony, division of property and responsibility for debts. Other issues such as waivers or indemnifications can also be included. The parties begin with broad discretion to enter into any agreement on these issues, though the court reserves the right to review and change the agreements where necessary. For example, the terms of a settlement agreement cannot abrogate the court's power to make child custody and support decisions in the best interests of a child.
A marital settlement agreement takes what are potentially informal agreements between the parties and piecemeal decisions by the court and puts them into a final comprehensive document. When the judge issues the order or decree terminating the marriage, the marital settlement agreement is incorporated into the order and represents a mandated legal relationship of mutual obligations between the parties. Since the agreement has the authority of a court order, a party can be held in contempt for violation.
Drafting the marital settlement agreement is one of the last steps in divorce. It comes usually after the grounds of the divorce have been established and comprehensive asset and property disclosures have been made by both parties. Once all the facts of the marriage are disclosed, the parties must work to resolve the issues involved in terminating their marriage. When the marital settlement agreement is complete, it is filed with the court. If the court approves, the divorce is granted.
Some states allow for bifurcation of divorce, which allows the parties to be considered legally divorced without resolving their division of property issues. This is done either for tax reasons or to allow a party to remarry. Many states also allow for legal separation, which, while similar to divorce, does not terminate the marriage. Legal separation involves the drafting of a separation agreement that is analogous to the marital settlement agreement. In fact, if the separation is converted to divorce, the presumption is usually that the terms of the separation agreement may be carried over to the divorce settlement.
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