DIVORCE SETTLEMENT AGREEMENT

The divorce has been hard enough, and now there might be a trial? Trials may look good on television, but in most cases a settlement outside of court proceedings can be a better way to go. If you and your spouse can agree on the important issues in your divorce, you can avoid a trial. Here is a quick primer on how out-of-court settlement agreements in divorce cases get court approval.

Alternative Dispute Resolution in Divorces

Most divorces are settled before they go to court through negotiations or alternative dispute resolution. Alternative dispute resolution (ADR) includes mediation or arbitration. In mediation, the parties use a neutral third party mediator to discuss the issues in dispute. The mediator is there to facilitate an agreeable solution for both parties.

Arbitration also uses a neutral third party to settle the dispute. The arbitrator acts like a judge and after hearing from both sides makes a decision. Arbitration and mediation can both save time and expenses and avoid a public trial.

Another alternative to court involves collaborative divorce. A collaborative divorce process is different from the typical adversarial approach to divorce. In contrast, the collaboratively divorcing couple works together to reach a mutually beneficial solution. A collaborative approach can be better for the long-term, where a divorcing couple has continuing contact because of shared custody.

The Divorce Settlement Agreement

If a divorcing couple negotiates and resolves all issues related to their divorce, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written settlement agreement. The settlement agreement is provided to the family law judge in the court where the petition for divorce was filed.

During a divorce hearing, the judge will review the agreement and question the divorcing couple. The judge will clarify any issues and make sure each party understands and voluntarily agrees to the agreement. If the judge approves of the settlement agreement, the court will generally enter the terms of the agreement into the divorce decree.

Court Approval and Divorce Decree

Once the judge approves the divorcing couple’s settlement agreement, the judge gives the couple a divorce decree that shows that the divorce is final, and documents how key issues have been resolved. The decree dictates a number of things about the now-divorced couple’s rights and obligations. Most jurisdictions have statutory requirements that certain things must be addressed in the divorce decree, including:

  • Division of the couple’s marital property, debts, and resolution of other financial matters
  • Child custody, living arrangements, and a visitation schedule; and provisions for withholding of income for child support
  • Child support, healthcare, and insurance for a dependent child
  • Spousal support (alimony), including who pays, who receives, how much, when, etc.

If any of the required provisions are left out of the couple’s proposed settlement agreement, the court may require them to be addressed. If the judge does not approve one or more terms of the settlement agreement, the judge may order the parties to continue negotiating on those terms. If the couple does not reach any settlement agreement, the divorce case will go to trial before a judge or jury.

Partial Divorce Settlement

A divorcing couple may reach settlement on a number of issues related to the divorce, but might find themselves unable to agree on other questions. If this happens, a partial settlement might be reached, and the remaining unresolved issues will be submitted to the court for resolution. Even a partial settlement can still save the court and the parties considerable time (and money) by narrowing the issues so that they can focus their resources only on the matters in dispute.

For example, if the couple has worked out a voluntary settlement on all issues related to their children (child custody rights, a visitation schedule, payment of support) but cannot agree on what to do with the family’s vacation home, the court might approve a partial settlement agreement on custody and support, but will order that the property issue be submitted for resolution at trial.

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