Divorcing couples negotiate divorce settlement agreements through their attorneys. Depending on the state's property distribution laws, parties must distribute all marital property between them and settle the terms of alimony and child support and visitation. Unresolved issues may proceed to litigation or arbitration. Although state divorce laws vary, most agreements contain the same key provisions. Parties must both sign the agreements and file it with the court before issuance of a final divorce decree.
Identification of Parties and Jurisdiction
Depending upon the state's marriage residence laws, the divorce can occur through the circuit courts in which parties reside, where the marriage took place and where the children are born. All agreements must identify the exact names of the parties, the number of marriages between them, the reasons for divorce, mandatory separation times and the names and number of children born during the marriage.
Complete Distribution and Allocation of Assets
States use community property or marital property laws to determine division of marital assets and allocation of separate property. The spouses must agree upon apportioning assets and debts or liabilities between them. If the parties cannot mutually agree upon the property and debt division, then this issue remains unresolved. Property should include real property, money, investments and retirement assets. Debts should include all outstanding liabilities and division. Skilled attorneys will counsel their respective clients on the tax implications and waiver of any future rights before agreeing to the terms of the arrangement.
Child Custody and Parenting Determination
If the divorcing spouses have minor children, then they must agree upon exact parenting terms and custodial arrangements. If the parties agree to visitation schedules, then the agreement should outline the exact visitation schedules to avoid future uncertainties and possible litigation down the road. Each state has visitation laws to allow all parents visitation rights to their children. Typically, courts can subsequently address and reconsider provisions regarding children using the "child's best interests" standards. Public policy laws make it illegal for parties to contract around visitation rights.
Alimony and Child Support
State guidelines determine child support obligations depending upon the number of visitation days and the respective incomes between spouses. Additionally, earning potential and custodial arrangements are factored into the final calculation. Agreements should cover which spouse has the responsibility to maintain health insurance for the children and if applicable, for each other. State laws also determine whether rehabilitative or permanent alimony is necessary, the amount of monthly alimony and the terms of alimony. Fault factors regarding why the marriage dissolved can also be a deciding factor. Lawyers should consider the tax implications of alimony and child support on their client's behalf.
Seek Family Law Advice
Since family laws may frequently change, you should not use this information as a substitute for legal or tax advice. Seek advice through a divorce attorney licensed to practice law in your jurisdiction.
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