Is there a difference between a separation agreement and a marital settlement agreement? Yes!
When spouses separate, they may voluntarily enter into a separation agreement – a binding contract that covers their promises to each other. A separation agreement is very useful because it spells out how family concerns regarding children, support, and property will be handled during the couple’s period of separation. This is important because, in many states, a lengthy period of separation is grounds for divorce.
To allege separation as grounds for divorce, the parties may have to live separately and apart without cohabitation for as long as one or two years. Things need to be decided, especially regarding how minor children will be cared for during the separation period. The separation agreement controls how family matters will be handled during that period of separateness and non-cohabitation until a decree of divorce can be obtained. Additionally, the jurisdiction may permit a much shorter period of separation as grounds for divorce when the parties have already entered into a separation agreement.
Marital Settlement Agreement
A marital settlement agreement includes any agreements voluntarily entered into by the spouses to terminate their marriage. The marital settlement agreement may include any or all of the following provisions:
- Child custody and parenting arrangements in the form of a parenting plan;
- Parenting time and a residential schedule;
- Healthcare insurance provider for the child;
- How parents will communicate with each other;
- Child support in addition to that required by the state’s child support guidelines;
- Establishment of an education trust for the child;
- Spousal support (alimony or spousal maintenance);
- Disability insurance and life insurance to ensure alimony and child support are paid should the obligor spouse become disabled or die;
- Life insurance with the child named as beneficiary;
- Who shall be entitled to claim the tax dependency exemption for a child;
- How marital property will be distributed between the spouses;
- How retirement accounts, investments, and pension benefits will be divided and distributed;
- How the marital home and other real property owned by the parties shall be divided;
- Who will be responsible for paying which marital debts;
- How professional fees for mediation and attorneys’ fees will be paid; and
- How court costs, filing fees, forensic evaluators, and expert witness fees will be paid.
Negotiating and Mediating Agreements in Divorce
The most contentious divorces still involve negotiations. That’s true with military divorces, too. After all, there are many decisions to make regarding child custody and family support, alimony and maintenance, allocation of separate property, and the division of marital assets and debts, among other things.
Everything boils down to two alternatives for the parties: either they resolve the issues between themselves or they surrender the matter to the judge for a final decision.
Needless to say, just the idea of letting the court mandate how they will raise their children is upsetting for many parents. Therefore, staying in control of the decision-making usually motivates spouses to give settlement negotiations their best efforts. And doing so is frequently in the child’s best interests anyway.
Resolving issues without trial typically saves the parties money, too, because few issues will need to be litigated at trial. Litigation is almost always the more expensive route to resolving disputes. If child custody is contested, then hiring a forensic child custody evaluator can add thousands to the final cost. When complex assets, business interests, investments, or property interests need a valuation, a battle of the experts can ensue with a correspondingly high price tag.
With the assistance of their divorce lawyers, the parties should negotiate in good faith, and set aside any hostilities to get the job done. With the help of a professional mediator, they could reach a mediated agreement on some of the more stubborn issues.
Although some spouses can work through important decisions and reach an agreement, they should still have their lawyers reduce their understanding to a written instrument. One that satisfies the legal requirements needed for a separation agreement or marital settlement agreement, as is the case, and protects their respective rights and interests.
Amy Dohrendorf is a partner with Stewart Law Group, an Arizona law firm with offices in Chandler, Phoenix, Scottsdale, and Peoria. Stewart Law Group has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
