Divorce Settlement Law

Divorce settlement law varies from state to state in that some states require mediation for the parties to attempt a settlement and some states do not. Settlements also vary because of the circumstances involved in each case--laws governing child support, alimony and division of assets are different for each state.

Types

There are two types of settlements, a full settlement and a partial settlement. Often, the parties attempt mediation but cannot agree on one or more aspects of the case. This could result in a partial settlement. The parties might agree on child support and division of most assets and liabilities but cannot agree on alimony or whether nonmarital assets should be divided as marital property because of commingling (this often happens with retirement accounts that existed prior to the marriage).

Equitable Distribution

Equitable distribution occurs when the court looks at all marital and nonmarital assets and liabilities and determines a percentage of the total for each spouse. The division might be 70-30 in favor of one spouse because the other spouse has a significant nonmarital asset (an asset that was brought into the marriage by one spouse and does not belong to the other spouse). Retirement accounts that do not get deposits during the marriage often remain a nonmarital asset, but if the owner deposits marital funds into the retirement account (your paycheck is marital funds), it might convert to a marital asset. There are other things taken into consideration when determining equitable distribution, such as the type of alimony (permanent, periodic, temporary, lump sum), child support and whether the receiving spouse has the ability to make as much as the paying spouse.

Child Support

While child support is included in a settlement agreement, except for certain situations, child support is non-negotiable. Each state has a formula it uses to determine child support. Child support is determined based on the parties' incomes and the number of children. If the parties choose to have 50-50 rotating custody, they can opt to have no child support because both parties are contributing equally to the housing and care of the children.

Results

If the parties can come to a settlement, they have a better chance of getting what they want rather than relying on the court to determine which spouse gets which asset and how much alimony should be paid. The court is going to look at what is in the best interest for the children and equitable distribution of assets and liabilities. The equitable distribution might be acceptable in the amount each party receives, but not for the actual item that each party receives.

Accountability

Once a settlement agreement is signed, it must be adhered to. A settlement agreement is harder to modify than a final judgment because it is presumed that the parties wanted the terms in the agreement, and were not ordered to abide by the terms. Before signing a settlement agreement, the parties must read it carefully and make sure it says what they mean for it to say. If they do not understand the terms or the ramifications of the terms of the agreement as drafted, they should consult an attorney. A settlement agreement binds the parties, and if either does not abide by the terms, the "injured" spouse can use the court system to enforce the agreement.