The laws of each of the 50 states establish the parameters for reaching a divorce settlement and drafting a separation agreement. A separation agreement often is referred to as a settlement agreement or property settlement agreement. Despite some minor variations in the law from one jurisdiction to the next, the overall requirements associated with settling a divorce case and preparing a separation agreement largely are the same, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember.
Considerations
Although many divorces end up being emotionally and legally challenging, the reality is that family statutes and companion court rules prefer that spouses at least attempt to resolve issues between themselves. Divorce laws and procedures are developed in such a manner as to encourage a couple to attempt to negotiate a settlement of financial matters, custody issues and other disputes before resorting to a divorce trial before the court, according to "Nolo's Essential Guide to Divorce" by Emily Doskow.
Features
The features of divorce negotiations and the resulting separation or settlement agreement include provisions outlining the division of assets and debts accumulated by the couple during the lifetime of the marriage, according to Cornell University Law School. Additionally, the separation agreement establishes the custody and visitation or parenting time plan for any children born of the marriage. Other matters like alimony are included in the agreement as well.
Mediation
Sometimes the parties to a divorce require added assistance to reach a settlement. With increasing frequency, divorcing men and women turn to mediators to assist in resolving issues, according to the American Bar Association Section of Family Law. Indeed, some jurisdictions now require divorcing couples to participate in mediation, particularly to attempt to resolve issues pertaining to children. A trained mediator does not make decisions for a couple in the manner of a judge. Rather, she guides a couple toward reaching decisions on their own.
Misconceptions
One of the common misconceptions associated with divorce settlement and a separation agreement is that such a contract does not carry the same weight as a court order. In fact, once a settlement agreement is drafted and signed by the spouses, the document is presented to the judge for review. Provided the document generally is fair and meets the legal requirements for a contract, the judge approves the separation agreement and incorporates it into the divorce decree, as discussed in "The Complete Divorce Handbook: A Practical Guide." The net effect is that the separation agreement becomes the order of the court.
Expert Assistance
In addition to considering the use of a mediator as an aid to settling a divorce case, retaining a lawyer may also be a wise decision. Although an attorney costs money, knowing that she has the capability to protect your rights and interests in settlement negotiations renders the fee expenditure a worthwhile investment.
References
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
- Cornell University Law School: Divorce Overview
- American Bar Association: Section of Family Law
- "Nolo's Essential Guide to Divorce"; Emily Doskow; 2008
