Creating Your Divorce Settlement Agreement

Divorce is a challenging process to navigate. Many people at the end of a marriage find themselves facing emotions like nervousness, fear, and sadness. Given the large number of marriages that end each year, however, a huge number of people are forced to struggle through these emotions.

One of the most challenging parts of a divorce is the creation of a divorce settlement, which is a contract between you and your former spouse agreeing on the terms of the divorce and addressing a variety of topics including child support, spousal support, and how property should be divided. The following will review some important points to consider before entering into a divorce settlement agreement.

Properly Identify Assets and Debts

During your divorce, some assets will be classified as “marital,” or shared with your former spouse, while others will be separate, and belong to you alone. In most situations, anything that you owned before the marriage will remain a separate asset. Most things that are acquired during a marriage, however, are classified as marital assets. In some situations, it might be possible to discuss assets with your spouse in a civil and respectful way. 

Other times, this might not be possible. When it comes to dividing assets in a settlement agreement, one of the best strategies to follow is to begin with the jointly owned assets and how they will be handled, and then address joint debts.

Below is an expanded breakdown of the classification and division of assets during divorce proceedings:

1. Classification of Assets:
   • Marital Assets:
     • Definition: Assets acquired by either spouse during the marriage.
     • Examples: Shared bank accounts, property bought after marriage, investments made during the marriage, and vehicles purchased and used during the marriage.
   • Separate Assets:
     • Definition: Assets owned by one spouse prior to the marriage or those acquired as gifts or inheritances specifically to one spouse during the marriage.
     • Examples: Property owned before marriage, inheritance received by one spouse, gifts given specifically to one spouse, and personal injury awards received by one spouse.
2. Discussing Asset Division:
   • Civil Discussions: If possible, spouses should attempt to discuss the division of assets in a respectful and constructive manner to reach an amicable agreement.
   • Professional Mediation: In cases where direct communication is challenging, mediation by a neutral third party can help facilitate discussions and lead to a settlement.
3. Dividing Marital Assets:
   • Starting Point: Begin with assets that are clearly jointly owned, such as the marital home, shared vehicles, or joint bank accounts.
   • Equitable Division: Marital assets are typically divided equitably, though not always equally, based on factors like each spouse's financial situation, contributions to the marriage, and future needs.
4. Handling Joint Debts:
   • Identification: Clearly identify all debts that are owed jointly, such as mortgages, car loans, and credit card debts.
   • Division Strategy: Decide how these debts will be split. This can be equally, or based on each spouse's ability to pay, among other considerations.
5. Legal Considerations:
   • Legal Advice: Consult with divorce attorneys to understand your rights and to ensure a fair division of both assets and debts.
   • Court Approval: Any agreed-upon asset division needs to be approved by a court to ensure that it meets legal standards of fairness and equity.
6. Documentation and Records:
   • Asset Documentation: Prepare detailed documentation of all assets and debts, including dates of acquisition, purchase values, and current values.
   • Transparency: Ensure full disclosure to prevent future legal complications or accusations of hiding assets.
7. Complex Assets:
   • Businesses: Valuing and dividing a business can be complex and may require professional valuation.
   • Retirement Accounts: Consider tax implications and legal requirements for dividing retirement accounts, possibly requiring a Qualified Domestic Relations Order (QDRO).
8. Post-Divorce Updates:
   • Title Changes: Ensure that assets transferred to one spouse are re-titled appropriately.
   • Beneficiary Updates: Update beneficiaries on life insurance, retirement accounts, and wills to reflect the new circumstances post-divorce.

Address Child Visitation Schedules

After assets and debts are tackled, you should move onto discussing any arrangements that you might have with your children. This means deciding whether sole custody, split custody, or shared custody works best for your situation. While shared custody was once the most common choice, a growing number of divorced parents are entering arrangements in which children temporarily live with both parents. If you select sole custody, it is also important to address how visitation will occur. 

Here's a more detailed breakdown of the process for discussing child custody arrangements:

1. Types of Custody Arrangements:
   • Sole Custody:
     • Definition: One parent has the primary legal and physical custody of the children.
     • Considerations: The non-custodial parent may have visitation rights, but does not have equal decision-making authority or physical custody.
   • Split Custody:
     • Definition: Each parent has full custody of one or more of the children, splitting the siblings between them.
     • Considerations: This is less common and typically used only under specific circumstances where it's in the best interest of each child.
   • Shared Custody:
     • Definition: Both parents share legal and/or physical custody of the children.
     • Considerations: This arrangement requires a high level of cooperation between parents and is often structured around a schedule where children spend nearly equal time with each parent.
2. Evolving Custody Trends:
   • Temporary Shared Living Arrangements:
     • Details: An increasing trend where children live with both parents in a temporary and rotating basis, which can help maintain stability for the children.
     • Benefits: Allows children to maintain a strong relationship with both parents post-divorce.
3. Deciding on the Best Custody Arrangement:
   • Child’s Best Interest: Custody should be decided based on what is in the best interest of the child, considering their needs, age, and relationships with each parent.
   • Parental Agreement: Parents are encouraged to come to a mutual agreement that supports the child’s development and emotional well-being.
   • Legal Guidance: Consulting with family law attorneys or mediators can help define the most suitable arrangement and ensure legal requirements are met.
4. Implementing Visitation for Sole Custody:
   • Regular Schedule: Establishing a consistent visitation schedule that works for both the child and the non-custodial parent.
   • Holidays and Special Occasions: Deciding how holidays, birthdays, and other significant events will be shared or alternated between parents.
   • Flexibility: Allowing room for adjustments in the visitation schedule based on the child’s activities and changing needs.
5. Documenting and Legalizing Arrangements:
   • Parenting Plan: Draft a comprehensive parenting plan that outlines custody arrangements, visitation schedules, and how decisions about the child will be made.
   • Court Approval: Submit the parenting plan for court approval to ensure it is enforceable and legally binding.
6. Communication and Cooperation:
   • Co-Parenting Strategy: Develop a strategy for ongoing communication and cooperation between parents to support the child’s life post-divorce.
   • Conflict Resolution: Establish methods for resolving future disagreements regarding the child in a constructive manner.

Do Not Rush Into Signing the Agreement

To save costs and speed up the process, some parties download one-size-fits-all, do it yourself forms online. While these forms might help you save a small amount in the present, they often lead to complications that create substantial challenges in the future. Instead, if you plan on entering into a divorce agreement, you should make sure that you fully understand the terms of your agreement. 

If you rush into signing an agreement and the court approves, you can suddenly find yourself locked into undesirable terms that are difficult to change. It is also common for the other spouse to begin acting in an undesirable way, but for there to not be any provisions in the settlement agreement that restrict this behavior. 

Speak with an Experienced Divorce Attorney in Georgia

If handled improperly, a divorce can leave you facing many financial and emotional challenges. By retaining the assistance of an experienced divorce attorney, however, you can avoid many of these challenges.

Contact Vayman & Teitelbaum, P.C. today to schedule a case evaluation.