Divorce Agreement

What is a divorce agreement?

A divorce agreement is a document used by a married couple to handle their responsibilities and divide their assets as they move through the process of dissolving their marriage. This document can be used to create either a temporary agreement that will only remain in place until a new agreement is created through a divorce decree, or an agreement that will be incorporated into a final divorce decree and remain in place after the divorce is finalized. By creating a divorce agreement, this can lessen or even eliminate the need for court intervention.

Parties may use this document if:

• They intend to file for divorce in the United States and meet the residency requirements for their state
• They mutually agree to separate and are still in contact with each other
• They are willing and able to negotiate the terms of the divorce, including property division and, if applicable, child custody.

Divorce can be a long and confusing process that is overwhelming for all parties involved. For more information about this document and the overall divorce process, please refer to the guide How to Get Divorced.

What are the different types of divorces?

There are two main types of divorces: contested and uncontested.

A contested divorce is one where the divorcing couple does not agree on one or more issues related to the divorce. This could be about the property division, child custody, support, alimony, or any other issues that must be resolved to complete the divorce. In the case of a contested divorce, a judge must step in and make these decisions for the parties.

An uncontested divorce is one where the divorcing couple agrees on all the issues related to the divorce. They are able to work collaboratively and come to an agreement that is acceptable to both of them. In the case of an uncontested divorce, the parties can use a divorce agreement without needing a judge to take over the decisions from them.

NOTE: This document can exclusively be used for uncontested divorces where the parties agree on all the issues.

What is the difference between a divorce agreement and a child custody agreement?

Though both documents can be used by married couples who are divorcing, each document has a different focus. The divorce agreement is a broad contract that covers everything the couple needs to address to divorce. It includes discussion of child custody, as well as child support. However, it also includes property division, spousal support, alimony, and other relevant issues. A child custody agreement is a much more narrow document that only covers child custody and support. It cannot be used to complete a divorce, but focuses only on one specific element of the separation.

Is it mandatory to have a divorce agreement?

No, it is not mandatory to have a divorce agreement. If a couple does not have a divorce agreement that they have created together, a judge will make decisions about how to divide their assets and handle issues such as custody and support. Though a divorce agreement is not mandatory, it is highly preferable for many people. By using this document, the parties can maintain some control over the outcome and feel more ownership over the final decisions that are made. Rather than there being a winner or loser, a divorce agreement facilitates are more collaborative approach.

What is a "contested divorce"?

A contested divorce is one where the divorcing couple does not agree on one or more issues related to the divorce. This could be about the property division, child custody, support, alimony, or any other issues that must be resolved to complete the divorce. In the case of a contested divorce, a judge must step in and make these decisions for the parties.

What is an "uncontested divorce"?

An uncontested divorce is one where the divorcing couple agrees on all the issues related to the divorce. They are able to work collaboratively and come to an agreement that is acceptable to both of them. In the case of an uncontested divorce, the parties can use a divorce agreement without needing a judge to take over the decisions from them.

What is "physical custody"?

Physical custody refers to where the divorcing couple's children will live. Physical custody can be shared between two parents, meaning that children will split their time and live with both parents. Alternatively, one parent could have sole physical custody, meaning that the children only live with one parents.

What does "legal custody" mean?

Legal custody refers to who will make significant decisions concerning the children, such as what medical treatments they will receive, where they will go to school, what, if any, religious education they will receive, and other such issues. Just as with physical custody, legal custody can be shared between two parents, meaning both parents get input into these decisions, or one parent can have sole legal custody, meaning they get to make the final decision by themselves.

What is "spousal support"?

Spousal support, also known as alimony, is financial support that is paid by one spouse to the other when their marriage ends. Spousal support is most commonly paid when there is a large difference between the spouse's incomes upon separation. The purpose of spousal support is to help the spouse who is in financial need (provided the other spouse has the ability to pay) and to compensate the spouse with the lower income for sacrificing some of their earning power during the marriage.

What is "marital property"?

Marital property is any assets or debt acquired by the couple during the course of the marriage. This could include homes, cars, stock options, retirement accounts, mortgages, credit card debt, or any other type of tangible or intangible property or debt. This property is subject to division during the divorce. It does not include any property that a party already had before entering into the marriage, like a home that was already owned by one member of the marriage before the marriage took place.

What must a divorce agreement include?

A valid divorce agreement must contain at least the following mandatory clauses:

• Identifying information: The divorce agreement should include information describing each of the parties, as well as any children they have together.
• Marriage information: The divorce agreement has the date and location where the marriage took place. This can be both in the United States or in another country.
• Separation date: The divorce agreement specifies the date when the couple separated. This can be a physical separation, if the couple lives separate and apart from each other, or an emotional separation, if the couple still lives together but no longer holds themselves out as married.
• Child custody: If the couple has children and there is not already a custody agreement in place, the divorce agreement must include a description of how the couple will arrange custody of the children. This covers both physical custody, or where the children will live, and legal custody, or who will make decisions regarding how the children are raised.
• Child support: If the couple has children and there is not already a child support order in place, the divorce agreement must outline who will pay child support, how much they will pay, and for how long these payments will continue.

NOTE: Child support is a matter of the state and must be approved by a court before a party can change the amount of child support they pay if there is already a support order in place.

• Property division: The divorce agreement outlines how the divorcing couple will divide all of their marital property. The marital property includes any assets or debts the couple acquired over the course of the marriage.

In addition to the above mandatory information, the following information may also be included:

• Spousal support: The divorcing couple has the option to require that one of the parties pay spousal support, also known as alimony, for some period of time.

What is not allowed in a divorce agreement?

Though a divorce agreement may contain a description of the child support one of the party's must pay, child support is ultimately a matter for the courts. The judge has the final say on who will pay support and how much they will pay. If there is a divorce agreement in place, the judge will use this to guide their decision, but if they believe the decision is not in the best interests of the child, they are free to create a different child support order.

What should be done once the divorce agreement is finished?

Once the divorce agreement has been written, the parties may independently consult attorneys to review the document. The parties may agree, particularly if the agreement includes the division of a large amount of property, to each consult with an attorney prior to executing the document due to the nature of the important and personal rights involved. If desired, there is the option to sign the document in front of their attorneys and have their attorneys complete paperwork acknowledging that they've witnessed the signing of the document.

After the parties have completed the agreement and each signed and dated it, they can then take the document before a judge. If the court decides that the agreement is fair to all concerned parties, it will be signed in to an order of the court as a final judgement of divorce and a divorce decree will be issued.

Which documents should be attached to the divorce agreement?

The parties should attach a copy of their marriage certificate to the divorce agreement when they submit it to the court to be approved and finalized.

Is it necessary to register the divorce agreement?

The completed divorce agreement must be submitted to the local family law court in the jurisdiction where the couple is filing for divorce. At that point, a judge will review the agreement and decide whether to sign off on it. If it is approved by a judge, a final divorce decree is issued and the divorce is complete.

Is it necessary to have witnesses for a divorce agreement?

The signing of the divorce agreement should be witnessed by at least two people. The witnesses should be 18 years or older and of sound mind and body.

Which laws are applicable to a divorce agreement?

Divorce and separation is generally a matter of state law, with different states having different laws dictating the time and manner in which a divorce is completed.

To file for divorce in a state, you must meet that state's residency requirements. Some states require longer residency periods than others prior to filing for divorce. Further, some states have additional requirements in order to file for divorce in that state. Currently, Louisiana, South Dakota, Iowa, Alaska, and Washington state are the only states who do not have residency requirements. You can find the residency requirements for your state by checking with your County Clerk's office where you plan to file for divorce.

In determining matters related to children, such as child custody, visitation, and support, a Court must approve any arrangement using a "best interests of the child" standard. Generally, if both parents come to an agreement regarding these matters, a Court will be willing to include the agreement in the official legal documents. However, the possibility remains that a Court will require an adjustment of the agreement if they determine that the arrangement is not in the best interests of the child(ren) involved.

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