Divorce Settlement & Separation Agreements With Children

By Heather Frances J.D.

Children often benefit when their parents can divorce amicably by using a settlement agreement instead of allowing a court to decide on divorce terms like child custody. Parents also benefit because they are able to customize arrangements that work well for both parents without forcing the court to make decisions for them -- decisions they may not like.

Divorce Settlements

A divorce settlement agreement, also called a separation agreement, is a written contract between spouses, and it typically addresses topics such as the division of marital property and debt, spousal support and child custody and support. A settlement agreement may contain many of the same terms as a divorce decree that a judge issues after a fully contested divorce case, but spouses can draw up their own settlement agreement and it can be included as part of the final divorce decree.


A couple’s settlement agreement can be attached to their divorce paperwork for the judge to review, and it will become part of the final divorce decree as long as the judge approves of it, though judges are unlikely to disapprove a settlement agreement between spouses. Once it becomes part of the decree, it is enforceable by the court. If one spouse fails to fulfill her obligations under the agreement, the court can help the other spouse enforce it through a contempt of court finding.

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Parenting Plans

Courts typically encourage parents to include a parenting plan in their agreement. Parenting plans typically address such matters as a child’s living arrangements, visitation by the noncustodial parent, holiday and vacation schedules and what happens if one parent wants to move a long distance away. Parents can also decide how they will make major decisions for the child, including decisions about his education, religious upbringing and medical care. Like other aspects of a settlement agreement, the parenting plan must be submitted to the court and approved by the judge before it is enforceable. Before approval, the judge must decide that the plan is in the best interests of the child.

Child Support

While each state has its own formula for calculating child support, a court typically considers each case’s custody and visitation arrangement when calculating support payments. However, since child support is intended to benefit the child, not the parents, some courts may require parents to stick to the child support guidelines prescribed by their state. However, the separation agreement can address whether the paying parent will be responsible for paying for the child’s college education, since many states terminate mandatory child support when a child reaches majority, typically when the child reaches the age of 18 or 19 or graduates from high school, whichever is later.

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Joint Legal Vs. Joint Physical Custody in New York State


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Custody and Visitation of Toddlers

When spouses divorce, they must decide how to split custody of their children, including setting a visitation schedule so each parent gets to spend time with the children. If the parents cannot agree on custody and visitation arrangements, the court will make these decisions for the parents. Though the process is generally the same for all children, toddlers may need special consideration because of their young age.

Can Physical Custody Be Changed for Children When Parents Have Joint Legal Custody?

In many instances, it is possible for parents to change their children’s physical custody arrangement when the parents have joint legal custody. That said, each state makes its own laws regarding child custody issues. Thus, the exact procedures for changing physical custody, and even the terminology used to refer to custody arrangements, vary from state to state. In other words, the process for changing custody will vary based on where the family lives.

How to Waive Child Support in a Divorce Agreement

Both parents are financially responsible for their children under the law. This obligation doesn't go away simply because they may divorce, even if one spouse agrees to take on the financial burden alone. Any divorce agreement in which a parent waives the right to child support is not likely to be upheld in court, regardless of the state the family lives in.

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