A property settlement agreement is one of those legal documents that goes by different names in different jurisdictions. Depending on where you live, your state might call it a marital settlement agreement, separation agreement or something else entirely. By any name, it can include provisions for custody of your children, but in some states, you might have to file a separate document to address this issue in addition to the property division and support aspects of your divorce. In all states, a settlement agreement is a document that can finalize the end of your marriage.
A settlement agreement between spouses becomes a binding contract when each of you sign it. This can occur at any time during your divorce proceedings; it can even be done before you file for divorce. When you have such an agreement in place, your divorce is uncontested and the process for ending your marriage becomes much more streamlined. Typically, the terms you and your spouse have agreed to and have signed off on are incorporated into your divorce judgment or decree. This can be the case even if your agreement is a separation agreement intended to govern the situation until one of you files to end the marriage. An exception exists if, at the time of your divorce, the judge decides that some aspect of your agreement is grossly unfair, but this rarely happens. Should it occur, the judge might delete the offending provisions or send you back to the drawing board to come up with a new, more equitable agreement.
Your settlement agreement should cover all possible issues between you and your spouse so a judge can approve it without fuss and you can be divorced. Regardless of whether your agreement includes child custody terms or your state requires a separate agreement for custody considerations, you must detail issues of legal and physical custody. Legal custody determines which parent makes decisions regarding your children's well-being and upbringing, and physical custody specifies with which parent your children will make their primary home. You can give these rights to one parent or share them jointly. If one parent has physical custody, you must detail visitation terms for the other. Your settlement agreement should also cover support – both child support and alimony – as well as division of your marital debts or property. This isn't to say that one of you must pay the other alimony; you can use your agreement to waive it if you like, but most courts prefer that you mention it one way or the other.
Your ability to make changes to a signed settlement agreement depends a great deal on whether you and your spouse are in accord. You can tweak it by agreement – this can be as easy as submitting a consent order to the court after your divorce, the terms of which would supersede those contained in your original agreement. If either you and your spouse objects to changing your agreement, however, this typically involves litigation. It's usually difficult to impossible to convince the court to throw out or invalidate an agreement after signing, at least with regard to property issues. You'd have to prove that you agreed to the terms based on a misrepresentation made by your spouse, because he lied to you about some fundamental fact, or under duress because he otherwise persuaded you to sign it against your will. Courts will generally change provisions for your children, however, if you file a motion for modification and the amendment is in your children's best interests.
When you're negotiating and preparing your property settlement agreement, it's important to remember that it binds only you and your spouse, not third parties. For example, if your agreement assigns payment of a certain credit card to your spouse and she later defaults on the payments, the creditor can pursue you instead if it was a joint account. Your private agreement doesn't bar a creditor from attempting to secure payment from the other joint debtor. You can protect yourself against this eventuality by including certain language in your agreement, giving you the right to go back to family court if such a thing occurs. The family court judge can then order your spouse to reimburse you for any debts you had to pay that were supposed to be paid by her.
References & Resources
- West Virginia Legal Services: Sample Separation and Property Settlement Agreement (PDF)
- United States Coast Guard: Common Questions and Answers on Separation Agreements (PDF)
- Law Office of Jeffrey R. Esser: Uncontested Divorce Overview
- Adelberg, Rudow, Dorf & Hendler: Maryland Bar Bulletin: Setting Aside a Marital Settlement Agreement (PDF)
- Fox Rothschild: Did a Property Transfer Occur?
- Judicial Branch of Arizona, Maricopa County: Consent Decree
- Comstock/Comstock/Getty Images