Once you decide divorce is the path you and your spouse are on, you need to get right to work to ensure the best settlement.  We put together an amazing recipe for "One Sweet Settlement"!

What is a Settlement Agreement?

A settlement agreement, related to a divorce, is the document that details the specifics related to your divorce/separation that you and your spouse negotiate with or without the help of legal experts and/or mediators.  It can be referred to, among other things, as a Marital Settlement Agreement (MSA), Property Settlement Agreement (PSA), Divorce Settlement Agreement and is commonly based on the Separation Agreement many couples establish at the beginning of their separation.

The types of specifics on it will include (but are not limited to): custody with parenting agreement/schedule, support/maintenance, division of property and debts, etc.  In most states it must be presented to a judge to become a part of the Divorce Decree.  Once it is, it becomes a court order.  This means either spouse could be found in contempt if it is violated.

A sweet settlement takes some preparation

Research

You will need to research laws in your state, the types of divorce available and grounds for divorce as they may apply to your individual circumstances.  Then, determine if your state is an equitable distribution state or community property state and how it will affect your case.  Locate legal options based on your situation and funds available for legal fees.  Know if there is a separation waiting period and what the specifics of that requirement are regarding residency and physical relationship restrictions of both spouses.  Review our His and Hers Divorce Planners in our Divorce Workshop.

Planning

You should develop a divorce plan based on your income, finances, housing and attorney fees.  Both spouses should consider a co-parenting schedule, support and alimony. You should develop an emotional management plan so that you negotiate your settlement objectively.

Consideration

Consider the probability of negotiating a settlement directly with your spouse or if the relationship problems would prove too much a challenge to get anything done without legal representation or mediation.  Think about the complexities of divorce and whether each decision is based on clear thinking or an emotional response to a problem that may be able to be resolved.  Divorce is right for many people, but it's also not an easy journey.  Take time to consider the entirety of your decisions.  

Ingredients: 

Legal Help

Before you and your spouse decide to divorce

If you and your spouse are currently heading towards divorce, it's important to take some time to consider the process (in it's entirety) of your divorce with your head, not your heart.  This means you need to begin preparing for the possibility of divorce, to include seeking legal advise. 

Check out the DMK Hubby and Wifey University sidebar article Considering Divorce to help you decide if divorce is right for you.

Each state's laws are different, so don't rely on the internet for legal advise.  Instead, use sites like ours to become a more knowledgeable legal consumer and to find your attorney.  According to Thomson Reuters siting a survey by FindLaw.com, legal consumers use the internet as their primary means to locate lawyers prior to hiring.  Search the DMK Directory to locate local attorneys and help with your divorce.

Consult with these attorneys with or without your spouse, depending on the situation to get an idea of what to generally expect, if you proceed.  There are many questions to prepare.  

Here are some questions you might ask in your first consultation:

  • Do you know my spouse? (if you are seeking an individual attorney)
  • What types of divorce are available in our state that apply to my circumstances?
  • What are your fees?
  • How will our state laws affect my case?
  • Is there a worksheet that would help me detail financial specifics to determine child support? (if applicable)
  • What are the state guidelines and minimums for child support? (if applicable)
  • Is there a required separation period?
  • What should I prepare for my next appointment (if hired)

There are numerous other questions, but for more information regarding each stage of the hiring process, consult our DMK Legal Guide.

Cooperation

Work together to save time and money

After you have a clear picture of legal and financial challenges ahead, you'll want to decide how to tell your spouse. 

How a divorce starts can dictate the entire process, including spousal cooperation for successful and efficient negotiations in order to achieve the best settlement for the least amount of legal fees. 

You know your spouse better than most, so if divorce is what you want along with a sweet settlement, be clear and have a plan for his/her reaction. 

Following the advise of an attorney and if you and your spouse still have a relationship where you two can negotiate most of the settlement without independent representatives or mediation, then do so.  It will save you money and time if you can avoid negotiating through attorneys or in court.

Settlement

Court battles may provide a better outcome than a settlement, but are they worth it? 

Few cases actually get litigated, but if you and your spouse negotiate either the separation or divorce settlement agreement, you should first consult with an attorney who can advise you of your general rights based on the type of divorce you select based on your circumstances.  

If you and your spouse are unable to negotiate directly, with your attorney(s), intermediary or arbitrator, then your case will go before a judge.  The decision is then out of your and your spouses control.  The terms of which you and your spouse are unable to agree, are then decided by a court.  The Final Judgement of Divorce is then established by a court.

Going to court will cost more in time and money, however, in some cases, one spouse may have significant advantage in doing so.  A few examples may include: husband commits adultery, causing the end of a marriage (advantage wife), wife's premarital assets that may affect the judges decision regarding support and/or division of marital assets (advantage husband), an unemployed wife seeking support while living with someone with whom she has a physical relationship (advantage husband), etc. 

This does not mean you will have an advantage.  It means that some decisions may be made by the judge with these things in mind when determining the terms of the divorce.

It basically comes down to deciding if the risk, time and money to take the case that far, is worth it.  Some couples have a judge decide on specific issues while the other issues are pre-negotiated outside of court.  It's important to speak with a local attorney for advice and to determine jurisdictional law as it applies to your circumstances.

Going to court keeps the couple in a state of divorce limbo.  Unless you're legally advised, based on your case, it may simply be better for your overall well-being to reach a settlement outside of court.

Documents

Get it together

Before retaining your attorney, you should have all of your financial documents together and an idea of your overall objective (e.g. legal separation, divorce). 

Review our His and Hers Divorce Planners in our Divorce Workshop for more information about what to assemble.

Be clear and upfront about your situation to make sure your attorney has all of the facts in order to help you establish the best settlement.   These facts may include: reasons for the divorce, who is the primary caregiver of the children (if applicable), marital debts and assets, trusts, earnings, lifestyle, etc. 

For more information about researching, meeting and hiring an attorney on the DMK Legal Guide.

Separation Agreement

Negotiating a Marital Separation Agreement 

If there is a requirement for you to separate for a period of time before divorce, you will likely establish a Separation Agreement to includes many of the issues in your long-term divorce settlement.  

States vary as to what is required to establish a legal separation or separation in response to the requirement (if applicable) for a divorce.  Consult your attorney or family court clerk for information about the guidelines.

Marital Separation Agreement used as a "test run" to solidify the best Divorce Settlement Agreement

Some details to establish in the Marital Separation Agreement will be: temporary alimony, maintenance, child support, custody schedule, housing, etc.  While this separation agreement may be used in developing the permanent divorce agreement, changes can be made. 

It is very helpful in giving you and your spouse the opportunity to determine how well the agreement works and to then modify it to accommodate long-term needs, detailed in the divorce settlement.  An attorney can advise you, but you can work out most of the details directly with your spouse unless you are advised otherwise.

Tips for either side of alimony distribution

  • Realizing the long-term sacrifice to one spouse's career by being the primary caregiver in the home will provide good reason for the amount awarded or negotiated.  But, judges consider many factors including a spouses background, experience and education as it may provide potential for higher pay.
  • Obtaining a vocational expert who can verify a spouse's earning's potential is common.  Some ex-spouses provide a higher alimony while their former spouse rebuilds his/her career with tiered decreases over the years following divorce.
  • Tax laws have changed regarding who can claim alimony as a deduction and who must claim it as income.  Both spouses should consult a tax professional who can advise them.
  • Grounds for divorce may affect alimony or support decisions, but most judges are more interested in the facts of income, ability to support oneself and potential for both spouses to maintain their current lifestyle following divorce.

Professional Advice

Quick settlements

Dragging your divorce out to pick through every minor detail may not be emotionally or financially beneficial.  However, be cautious of settling too quick.  This is one reason the spouse who asks for the divorce has an advantage.  He/she often has had more time to consider the options, consult an attorney and research the potential outcome. 

Protect yourself.  If you suspect the divorce is possible, get to know your options.  Get all your financial documents together and have some legal foreknowledge. 

If you are the one taken off guard, give yourself some time to get "lawyered up" before allowing a spouse to suggest a quick settlement.  You may end up sharing an attorney or hiring a mediation service later, but consulting with or hiring an attorney initially for general guidance could be beneficial.  If your spouse makes suggestions, take the time to see any benefit or detriment to his/her suggestion (e.g. shared attorney, arbitration, no attorney). 

Seeking professional guidance may go beyond the advise of an attorney.  Depending on your assets and liabilities, you may want to consult with an accountant, mortgage and/or real estate broker, financial advisor, etc. 

One example where a spouse wants a quick settlement of what seems like a fair division of assets is when there are tax benefits to that spouse based on the division of specific assets (that spouse takes an asset worth the same amount as the asset you take, but the tax liability, post-divorce, is higher for yours).  So be cautious and always consult experts who can advise you following your spouse's suggestion.  

Counseling

Emotional Management

So easy, yet so completely not easy.  Put together an emotional plan before going to the negotiating table.  In no way will the plan stop you from feeling every annoying snide comment from your soon-to-be-ex-spouse, but it will give you positive outlets to expel the negative energy in order to have a clearer head when negotiating.  Your plan should include ways to combat stress, activities to get your mind off your problems and professionals who can guide you with ways to cope with heart break and disappointment.

The more you remain in control of your emotions, the more you will be able to negotiate strategically and to your benefit.  Use your heart at the table and you'll lose your a$$ in the divorce!

Goals

Know what both spouses want

If you don't know what you want for the future because you're so focused on the problems of yesterday then your negotiating will be less efficient. 

Both spouses should know what the other wants in the transaction and work from there.  Develop a "wish list" for all areas of the settlement: custody, support, assets, debts, etc. 

It's probable you will both have a different idea of what's fair, so hold onto the most important things and be willing to give on the others.  You may never love your settlement, but you should focus on what matters most.

Test

Determine if you're ready

Once you have decided to divorce it would be a good idea to review both DMK Separation and Divorce Essentials.  Then take the tests to determine your readiness and/or areas that need attention to ensure your overall success in finalizing your separation and divorce.    

Just like anything you don't routinely prepare, your final settlement may not always turn out as you hoped.  But, with proper planning, professional guidance and helpful resources like DMK, you'll have fewer setbacks and hopefully still, One Sweet Settlement!

-OurDMK.com



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