What Types of Law Does Divorce Matters Practice?

Just from our name, it’s easy to tell that we excel in divorce law, but what other kinds of cases can Divorce Matters handle? We are a law firm specializing in family law. Family law covers a wide variety of different cases including:

Adoption

Estate Planning

Divisions of Marital Property

An important part of the divorce process in Colorado is figuring out how to divide marital property. The procedure generally involves two steps. First, it must be determined what marital property is. Second, the marital property must be divided equitably

Spousal Maintenance

In Colorado, neither spouse has an automatic right to maintenance. The court may award maintenance only if it finds that the spouse seeking maintenance lacks sufficient property to meet their reasonable needs and, in addition, is either unable to support themselves through appropriate employment or should not be required to seek employment because of child care responsibilities. Divorce Matters has lots of experience in Spousal Maintenance negotiations and our attorneys are the perfect choice to help you!

Child Custody

When children are involved, the divorce process doesn’t end once the final paperwork is filed. With children come often contentious and painful negotiations about and modification of parental rights, parenting time, and custody. Our team has deep experience dealing with child custody and parental rights issues and we believe it is our duty and an imperative to help couples address custody and rights issues in ways that reduce the impact of divorce and protect children in the process.

Child Support

In Colorado, child support is based on strict guidelines dictated by state laws and statutes. The issue of child support is separate and distinct from the issue of parenting time, and child support payments may not be conditioned upon parenting time. Due to these strict laws, it is important to have guidance from an expert attorney throughout the process.

Post Decree Modifications

Have your circumstances changed since your divorce? Have you lost your job? Has your ex-spouse received a salary increase? Did your ex-spouse fail to disclose financial matters during the dissolution of marriage? Once your divorce is finalized, fortunately, not everything in your original separation agreement or parenting plan is set in stone. Courts recognize that circumstances change, and, sometimes, spouses hide income or assets during the divorce process. Depending on the exact circumstances of your case, you may have a variety of options post-decree. In the following sections, we explore your options in modifying maintenance, child support, parenting time, custody, and decision-making, as well as how you can reopen your property division.

Mediation and Arbitration

Mediation and arbitration are perfect options for anyone going through a divorce. Both options allow the partners to take more control in the divorce, as well as keep the process out of court. Not only does Divorce Matters represent clients through mediation and arbitration, but we also have a mediator on staff!

Domestic Violence

Domestic violence happens to people in all classes, statuses, and ranks in life, regardless of age, gender, race, religion, education, profession, or socioeconomic status. The unfortunate reality is that one in four women in the U.S. will experience domestic violence in their lifetime, resulting in an estimated 1.3 million women becoming victims of physical assault by an intimate partner each year.

Contempt of Court

After having gone through a divorce or once you have some orders from the court, you may at some point find yourself on either end of a contempt of court action if one of the parties is not complying with the orders. If you find yourself on either end of a contempt action, Divorce Matters is here to help!

Unbundled Legal Services

Unbundled legal services are the perfect solution for anyone not ready to jump into full-scale representation. With unbundled services, you can hire an attorney at their hourly rate to help you with specific aspects of your legal troubles, like filing paperwork or gathering documents!

Common-Law Marriage

The state of Colorado allows couples to enter into common law marriage. However, the parameters of common law marriage can be hazy and difficult to understand, just like common law divorce

Appeals

If your case falls under family law, we can help with your appeal!

Prenuptial Agreements

While there are a million things to plan when a couple decides to marry, often the most difficult to discuss with your future partner is the possible need for a prenuptial agreement. While this subject is not the most romantic or exciting part of wedding planning, a couple contemplating marriage in Colorado may need to consider entering into a prenuptial agreement, or a contract before marriage.

Military Divorce

To thank our Military service members, we even offer 10% off of legal fees! This discount is offered to all active and retired service members, veterans, and military spouses.

Thomas Legal Firm

While Divorce Matters only deals in family law, we do have a sister law firm that offers other services. Thomas Law Firm deals with Criminal matters as well as Civil Law matters, including general litigation, civil rights, workers’ compensation, and business defense litigation.

Who Determines How Assets Are Divided During Divorce?

An important part of the divorce process in Colorado is figuring out how to divide marital property. The procedure generally involves two steps. First, it must be determined what the marital property is. Second, the marital property must be divided equitably. But who decides how the assets are divided?

What is ‘Marital Property?

First, it is important to define marital property. State law defines “marital property” as “all property acquired by either spouse subsequent to the marriage.” Anything that isn’t marital property is considered “separate property,” and will not be divided for property division in a divorce case.

Separate property is generally defined as being anything acquired by either spouse prior to getting married. It also includes certain types of property acquired during the marriage that is excluded from the marital property definition, such as any property

  • Acquired by gift, bequest, devise, or descent
  • Acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent
  • Acquired by a spouse after a decree of legal separation
  • Excluded by valid agreement of the parties (e.g., by a prenuptial agreement)

The division of assets in a divorce case is almost always harder and more emotionally taxing than it initially might seem. This is especially true for high-net-worth couples and couples who either jointly own a business or have complex business interests that are difficult to quantify monetarily. Unfortunately, it is also not uncommon for a spouse in a contentious divorce to either hide or undervalue assets, which can require a long and drawn-out divorce process.

Equitable Division

Once marital property has been identified and valued, it is then subject to equitable division, if the couple has not already divided the marital property amongst themselves! If the couple has decided not to divide the property themselves, the court and the judge will then decide how to divide the assets equitably. The word “equitably” in the context of divorce property division means that marital property must be divided fairly, but not necessarily 50-50.

By law, a judge that is presiding over the dissolution of marriage case in Colorado is required to consider a variety of factors in making sure that the marital property is divided in this way. Those factors are the contribution of each spouse during the marriage; the value of the property set apart to each spouse; the economic circumstances of each spouse at the time the marriage terminates; and any increases or decreases in the value of the separate property of either spouse during the marriage.

Who Decides?

As mentioned above, there are two parties that can decide how assets are divided. If the couple is on good terms or is going through mediation, it is possible that the couple can divide their assets amongst themselves. This is ideal, as it allows for each person to get what they want in a way that they deem fair. It also allows for a more streamlined divorce process with less court time necessary. However, this is not always possible in a contentious divorce. If it is not possible in your divorce, the court and the judge will be the ones who divide up the assets. The judge will divide the assets in a way that they deem equitable, not necessarily fair.

Marital Debt

It warrants mentioning here that any debt that was acquired during a marriage in Colorado becomes part of the equitable division equation during a divorce. In other words, a divorce court is empowered to allocate debt in a way that’s fair under the circumstances. A common misconception is that debt that’s been acquired in only one spouse’s name during the marriage is automatically classified as separate property and thus not subject to division. That isn’t necessarily true, and in fact, most debts acquired by either spouse during a marriage will be deemed marital property and divided accordingly.

Contact Divorce Matters® Today

The team at Divorce Matters® has helped thousands of clients and counting navigate the Colorado divorce process and get a fresh start in life. We are compassionate and experienced advocates who focus exclusively on family legal matters, including but not limited to equitable divorce property division, spousal maintenance (alimony), child custody and support, prenuptial agreements, collaborative divorce, appeals, and more.

To schedule a consultation, either call Divorce Matters® at 720-679-7881 or complete this convenient online form.

Can My Spouse Sell All of Our Assets Before the Divorce is Finalized?

One of the most searched questions on our website is “Can my husband sell our assets before the divorce?” The short answer is yes, your spouse can sell all your assets before the divorce is filed. There is nothing that specifically prevents them from doing so.

Despite the selling of your assets before the divorce being technically allowed, there are some things to take into account if your spouse is selling off your assets. Any proceeds from such sales would be considered marital property and would be divisible in the divorce process. The court may also penalize the selling party if the court finds foul play. Foul play could be defined as trying to hide or reduce the value of assets so that they are not discovered in the divorce process. The Court will also look to determine whether the property was sold for fair market value. If the items were sold for less than fair market value, then the court may impose additional value on the sale for a more equitable distribution of the marital assets throughout the divorce process.

Everything we’ve discussed so far refers to pre-divorce sales of assets. But the situation changes if the Petition for the Dissolution of Marriage has already been filed. Once the Petition for the Dissolution of Marriage has been filed, there is an injunction, or block, in place which prohibits the sale (or disposal) of marital assets. If one party violates the injunction and sells marital property, they may be found in contempt of court and penalties can be assessed against them by the court. In this case, there is an exception if the assets are sold or disposed of in normal business dealings.

The sale of real estate is also (generally) preventable after the filing of the Petition for the Dissolution of Marriage. This is because title companies often perform a search of the owner’s names and, if they determine that a Dissolution of Marriage is in progress, will typically refuse to sell the property without the other party’s consent. This is true for properties in one or both of the parties’ names. Even if you have not yet filed for divorce, you may be able to contact the title company and halt the sale. Most title companies do not want the liability of a court battle and will therefore most likely halt the sale. One may find the name of the title company by contacting the seller’s realtor. Any other property titled in both people’s names, like cars or other vehicles, will need both signatures for sale.

It is important to keep in mind that the reason for sale may also play a role in how the court handles the selling of assets. A seller needing to sell an item to obtain money to live is much different than a seller simply selling an item to spite their spouse.

Overall, most large items will not be able to be sold without both people signing the documents. As for smaller items, they can be sold, however, their proceeds will still be considered marital property and will be divided accordingly. It is also important to note that selling assets may make your spouse look unfavorable and unethical to the court.

Is There Any Way To Shorten The Mandatory Waiting Period For Divorce?

To answer the question above question, we must first delve into what a mandatory waiting period is. In the state of Colorado, there is a mandatory waiting period of 91 days from the date of joint filing or service on the responding party before a divorce can legally be completed. This waiting period is common in a lot of states and is meant to give people time to consider their situation and whether they want to go through with the divorce. However, this waiting period can also feel frustrating, especially if you already spent a lot of time thinking about your situation before filing or if you feel in danger.

With that being said, there is no way to shorten or avoid this waiting period. It is mandatory for every couple getting divorced in the state of Colorado. However, there are a few things that you can do while waiting for the end of your 91-day waiting period. With the help of an attorney, you can ask the court to issue agreements or court orders during your waiting period. These orders can be helpful if you need specific things from the court. For example, it may be difficult to sell your home before the divorce has gone through, but a court order can help with that.  Additionally, it might be helpful to work on filing all the necessary paperwork during your mandatory waiting period and find common ground with your spouse. Completing both of these tasks will make your divorce process go smoother and quicker once you are able to start proceedings.

The easiest way to deal with the mandatory waiting period is to consult with an attorney to see what they can do for your individual situation. If you have a specific reason for wanting to skip the waiting period, it is important to speak with an attorney. They will be able to tell you what is possible in your particular situation, and if you can work within the waiting period to get what you need. To speak to an attorney today, you can call us at (720)542-6142 or contact us through our website.

Will I be Affected by Changes to the 2021 Child Tax Credit?

Recently it was announced that under the American Rescue Plan Act the expanded Child Tax Credit would be distributed differently in 2021. This year, half of the tax credit will be distributed on a monthly basis beginning in July and the other half will arrive with your 2021 tax refund. While this tax credit is a welcomed relief for many families who are struggling to make ends meet, it also spells confusion for most folks who are going through or already divorced.

 

How will this tax credit be distributed if I am divorced?

 

The Child Tax Credit can only be claimed on one tax return, so if you are divorced or filing separately this means that only one parent will be able to claim the tax credit. A court order or separation agreement will name the person eligible to claim the tax credit, this is typical whichever parent has primary custody. There are several ways a 50/50 custody arrangement might address this, for example, some may choose to file with the tax credit every other year.

 

Can the courts rule that this year’s tax credit be split?

 

In most cases, the courts will follow whatever was agreed upon in your separation agreement or court order. However, this is not the end of the line if you wish to treat this year’s tax credit differently. For example, if your ex claims the tax credit every year but you are able to come to an agreement with them that you will file for the tax credit this year, you can file an IRS Form 8332. This form is a right of tax benefit transfer, which would allow you to claim for this year. Please be aware that it is important you check with your attorney first before moving forward with anything that deviates from your separation agreement. We also suggest seeking out a tax professional for help with filing your taxes.

 

Can the tax credit payments be garnished for child support if I am behind on my payments?

Per the American Rescue Plan Act, this tax credit is not subject to garnishment meaning you will receive the full amount from the government. However, this does not protect that payment from garnishment or levy once the money is in your bank account. Another consideration is that while it won’t be garnished when distributed when you file your taxes at the end of the year it may be subject to offset.

 

What do I do if the tax credit was claimed by my ex, but I was supposed to claim it this year?

 

The best way to handle this is to get in touch with your attorney. They will be able to help you chart the best course of action, whether that be reaching out to negotiate with your ex and coming to an amicable resolution, or filing a motion of contempt with the courts.

 

If you have questions, please reach out to one of our experienced attorneys today.

Everything You Need To Know About QDRO’s

What is a QDRO?

 

QDRO stands for Qualified Domestic Relations Order. The simplest way to describe it is as a legal document that splits up the funds in an ERISA (Employee Retirement Income Security Act) qualified retirement account. It is filed with the court as a part of a divorce or separation agreement stating that one spouse gets a pre-determined percentage of their ex-spouse’s retirement plan assets. One thing to note, if you choose to split retirement assets without a QDRO, the account holder is still responsible for taxes on the assets transferred. If you have a QDRO, your former spouse is then responsible for taxes once the funds are transferred.

 

Can a QDRO be reversed?

 

If you decide you’ve changed your mind about wanting a QDRO but it has already been received and processed, it is nearly impossible to reverse. The only way to have it changed is if the courts and the administrator agree that the QDRO goes against your divorce agreement and needs to be modified. If there is a misalignment, you might have to go back to your ex-spouse and re-negotiate in order to get the QDRO amended.

 

Do You Need One?

 

It is a good idea for anyone with retirement plan assets going through a divorce or separation to have a QDRO. In many cases, issues related to QDRO’s are overlooked and left unresolved, so it is important to speak with an experienced attorney about your retirement accounts to ensure you have a QDRO in place if necessary and that you’ve cover everything correctly in your divorce agreement.  Not many attorneys draft QDRO’s, but Divorce Matters attorney Ashley Balicki is skilled in drafting QDRO’s specifically. If you would like to speak with Ashley or any of our other experienced attorneys about your situation, contact Divorce Matters today or call us at (720) 542-6142.

American Rescue Plan Act of 2021

The American Rescue Plan Act of 2021 was signed into law on March 11, 2021. This economic stimulus bill was passed to counteract the negative health and economic effects of the COVID-19 pandemic and built upon previous legislation meant to do the same.

The bills key features include:

  • Extending expanded unemployment benefits through September 6, 2021
  • $1,400 direct payments to individuals, including eligible adult dependents (college students, SSI recipients, SSDI recipients). These benefits begin to phase out according to the following income schedule:
    • 75,000 for individuals, with no payment going to those earning more than $80,000
    • $112,500 for single parents, with no payment going to those earning more than $120,000
    • $150,000 for couples, with no payment going to those earning more than $160,000
  • Expanded tax credits for the 2021 year, including the child tax credit, child and dependent care credit, and the earned income tax credit
  • Small business grants
  • Funding for education, housing, COVID-19 healthcare, agriculture, transportation, and cybersecurity
  • Changes to ACA, COBRA, Medicaid and CHIP

While the passage of the American Rescue Plan Act may have brought some relief to families across the country, it also brings with it many questions if you are going through or have been through a divorce. How do these tax credits affect your family? What about the stimulus checks? We’ve compiled answers to your most pressing questions so you can understand how this may affect you and your family. If you have any other questions, reach out to us today and schedule a consultation with one of our attorneys. We always recommend speaking with a tax professional or your financial advisor if you have questions regarding your tax situation.

https://youtu.be/glN4VQstltc

 

Q&A 

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[accordion title=”Q. Who will receive the stimulus payments for dependent children?“]

A. For people who filed jointly in 2019 and have not yet filed their 2020 taxes, the stimulus will go to the joint bank account they used for their 2019 taxes. If a direct deposit cannot be completed, it will be mailed to the address on the most recent tax return. If you filed separately and have not yet filed for 2020, the person who claimed the dependent children in 2019 will receive the stimulus payment. If one person has filed and claimed the child, the first person to file taxes will receive the stimulus.

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[accordion title=”Q. Can I fight it if I feel like the stimulus payment(s) were sent to my ex incorrectly?“]

A. There is a process to appeal:

  1. Send docs to IRS
  2. Once the IRS has received your documents, they will examine both returns – the return with the claimed dependent(s) and yours – and apply the tiebreaker rules based on the criteria listed below. The process might take 8-12 weeks.
  3. If you found out that you claimed a dependent incorrectly on an IRS-accepted tax return, you will need to file a tax amendment or form 1040-X and remove the dependent from your tax return.
  4. Tiebreaker rules:
    i. A married couple or parents prepare and e-file or file a married joint tax return and claim the child a qualifying dependent.
    ii. Only one parent of the couple, who is also the child’s parent, claims the child as a qualifying child or dependent.
    iii. If the child has two persons as parents and the two persons do NOT file a married joint return, then the parent with whom the child lived or resided for the longer time period during a tax year will be qualified to claim.
    iv. If the child lived or resided with each parent the same amount of time during the tax year, the parent with the highest adjusted gross income or AGI will be able to claim. No married joint return, both parents claim the child on their respective return.
    v. If no parent claims the child as a qualifying child, then the person with the highest AGI qualifies over any parent who may have been able to claim the child, such as a qualifying step-parent or relative.
    vi. Because of the second tiebreaker rule (residence), the parent who has legal custody of a child is generally the parent who gets to claim the child in cases of divorced or separated parents. If you are the custodial parent and you wish to relinquish your dependency exemption and assign it to the non-custodial parent, you may do so by filing Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.

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[accordion title=”Q. Is my stimulus payment considered part of my income when calculating maintenance and child support?“]

A. Per the IRS, the payment is not income and not taxable. From a practical perspective, the amount is unlikely to make a significant difference in the calculation of child support or maintenance.

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[accordion title=”Q. What if my ex files their taxes claiming the Child Tax Credit and I feel like I should have been able to?“]

A. Keep in mind, an accepted tax return is not a guarantee to also have the right to claim the dependents on that return. If your ex erroneously claimed your child as a dependent, the Internal Revenue Code allows them to amend their tax return within three years of filing the original or within two years of paying the relevant tax, whichever is later. However, eliminating the dependent generally increases their taxable income and may require them to pay additional tax for that year. Although penalties may apply to the underpayment, the IRS can waive them if they can convince them that it was an unintentional error.

If they choose not to amend their tax return, they run the risk of the IRS discovering that the same child is being claimed as a dependent on two returns. The IRS has three years from the time they file the original return to perform an examination and make additional assessments. In the event they are chosen for an audit, the agency is likely to require proof that your child either lives with them or that they have your consent.

There is the possibility that the IRS will not discover the error within the three-year period. However, if they claim a dependent with full knowledge that they do not qualify, the IRS may argue that it has an unlimited amount of time to examine their return since they made a willful attempt to evade income tax.

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[accordion title=”Q. If I am in the middle of a divorce and it isn’t finalized yet, how do the stimulus payments and Child Tax Credit affect me? Do my ex and I split these?“]

A. This depends on what agreements are made or if there are any temporary orders in place. If you were married on the last day of 2020, you have to file as married jointly or married filing separately. Whether these payments should be split depends on the unique circumstances of the parties. We recommend you reach out to speak with one of our attorneys if you have any questions.

Miscellaneous Other Child Tax Credit Information:

  • You have to file a tax return to get this credit, even if you don’t owe tax and are not legally obligated to file a return.
  • This tax credit is refundable. So, if you’re due to receive a credit of $5,000 but you owe only $2,000 in taxes, you might get a check for $3,000.
  • For the 2020 tax year, there are special rules due to coronavirus: You can use either your 2019 income or your 2020 income to calculate your tax credit, and you can use whichever number gets you the bigger tax credit. Be sure to ask your tax preparer to run the numbers both ways.
  • A number of states offer some version of an earned income tax credit for working families, so you might be able to get that credit too.

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What Is Mediation And Does It Apply To My Case?

Mediation is a word you might hear often when learning about divorce, but do you really know what it is?

What is Mediation?

Mediation is a process that most couples in Colorado will go through here in Colorado. In almost all Colorado divorce cases, mediation with be required first thing in your divorce process. The purpose is to try and resolve your case by discussing the issues at hand and hopefully coming up with an outcome that both you and your ex can agree on. Mediation is mandatory in most cases in hopes that a couple can have control over their outcomes and settle their differences before involving the courts. The attorneys from both sides can be present with you at mediation to help advise you.

The mediator is a trained, third-party person that is hired by you and your spouse to go back and forth between you and your ex to facilitate the conversation. They remain completely neutral in hopes of coming to a compromise that is in the best interest of both of you. If mediation is successful and agreements have been made, you and your spouse will sign and submit a Memorandum of Understanding to the Court, which will then be incorporated into a formal, final separation agreement.

If mediation is not successful, and you and your spouse cannot come to an agreement, then the next steps options are scheduling a court hearing or, if both parties agree to it, you can decide to go to Arbitration.

Does mediation apply to you?

The answer is yes because it is required by Colorado law for most divorce cases. The state wants everyone to put forth their best effort in trying to settle issues on their own in hopes that they don’t have to go to court and make the situation even more stressful and drawn out. It can save you and your spouse a lot of money, time, and stress to go to mediation, and allow you to keep the most control over what happens to your future.

We always suggest having an attorney present with you for mediation in case anything is unclear, or you need legal advice. It can be beneficial to have legal representation because they will be able to use their knowledge of the law, while keeping your best interests in mind, to help deliver the best result for you and your future.

Contact us today to speak with one of our many experienced attorneys here at Divorce Matters.

CO Supreme Court Recognizes Same-Gendered Common Law Marriage

On Monday, January 5th 2021 the Colorado Supreme Court ruled that same-gendered couples that were in common-law marriages before the 2015 Obergefell v. Hodges legalization of same-sex marriage are now seen as valid in the eyes of Colorado State law.

 

Common-Law Marriages in Colorado

 

Colorado is unique in that it is one of eight states that recognize common-law marriage in the United States. A common-law marriage is a partnership between two people where they are not legally bound by a marriage license, but they hold themselves out as married. A couple may hold themselves out as married if they have combined bank accounts or assets, are recognized by family and close friends as married, live together, file taxes jointly, have children together, share insurance, etc.

 

Same-Sex Common Law Marriages Before 2015 Now Recognized

 

This recognition of same-sex common-law marriages that began prior to the 2015 Supreme Court decision is an exciting ruling, as it applies the law fairly for all couples who have ever been in a common-law marriage in Colorado, regardless of their sexual orientation.

 

This means if you and your spouse are in a same-sex relationship and held yourself out as married without a license before the 2015 Supreme Court ruling, you may be considered common-law married if you meet the criteria for common-law marriage. It also means you can now go through the divorce process if you are separating so you can fairly resolve the dissolution of your marriage through legal means.

 

If you and your partner are separating and have been in a same-sex common law marriage since before 2015, contact one of our Divorce Matters attorneys today to help. We can help answer your questions about this groundbreaking ruling and how it may affect your case.

 

You can learn more about common-law marriage here.

What Happens After a Marital Settlement Agreement?

 

What is a Marital Settlement Agreement?

A divorce settlement agreement can be referred to by many names, depending on where you live. It is a formal written document which lays out the terms both parties involved have agreed to. It can be called:

  • Divorce Settlement Agreement
  • Separation Agreement or Separation and Property Settlement Agreement
  • Custody, Support ,and Property Agreement
  • Mediated Separation Agreement
  • Collaborative Settlement Agreement
  • Property Settlement Agreement (PSA)
  • Marital Settlement Agreement (MSA)
  • Memorandum of Understanding (MOU)

The purpose of a marital settlement agreement is to document the details of any agreements reached between separating or divorcing spouses, and covers such areas as child custody, alimony (sometimes referred to as spousal support, maintenance, or separate maintenance), child support, the division of property, and any other issues that are relevant to your situation.

What the Process Involves

The steps you take to reach a marital settlement agreement can vary. You do not have to reach an agreement before you separate, but you can. You may also enter into a marital settlement agreement after you separate or after you file for divorce. In many cases, however, the parties involved may not be able to reach an agreement until divorce proceedings are about to begin. However, if you can reach an agreement before a judge intervenes, you can avoid unnecessary turmoil and minimize your attorney’s fees.

If you are able to reach a marital settlement agreement before you go to court, a divorce attorney or mediator can draw up the agreement and submit it to the judge, who will review the terms and ensure that they are fair and equitable. The judge may ask questions of one or both parties for clarification and to make sure everyone is in agreement. Because there is no discovery process in place in a divorce case, the judge will not have the opportunity to decide if your agreement is equitable (“fair”), but only if it complies with the laws of the state and is therefore legal and enforceable.

If you opt to begin the process before consulting an attorney, you can do so by acquiring the proper legal forms at your local county courthouse. Your marital settlement agreement should include:

  • The date you got married
  • The date you separated
  • The names and ages of any minor children
  • The reason (grounds) for your divorce
  • Your current address and living arrangements. This can mean that one or both of you has moved out of the family home, or that you’re currently living “separate and apart” within the home
  • The current situation and location of your children
  • Other assets that you wish to name (e.g., family pets)

Once the agreement is drawn up, both parties need to confirm their agreement in writing, and have your signatures witnessed to make them legal and binding. Assets and debts will need to be defined and divided, a parenting plan to include custody as well as visitation should be included and agreed upon, and finally spousal support and child support will need to be determined and agreed upon. Once you’ve finished the paperwork be sure to check for errors before having it reviewed.

It is important to note that it is highly recommended that this agreement is drafted and/ or reviewed by a qualified mediator or divorce attorney, and not something you or your spouse generates on your own without consulting a legal professional. There are legal terms that must be used and terms that must be specified in order for your marital settlement agreement to be legal and binding; this is not a good scenario to have anything unclear. It is always best to have an attorney working on your behalf.

If your spouse’s attorney draws up the document, you need to have your own attorney review it before you sign, to make sure it was done correctly and according to your understanding of acceptable terms. The document will be entered into court records and become part of the legal proceedings. Once the marital settlement agreement is signed it becomes legally binding. As contested divorces can become lengthy and complicated procedures, reaching an agreement before your case goes before a judge can save everyone time, expense, and stress.

What Happens After a Marital Settlement Agreement?

The marital settlement agreement, while it is a binding contract, is not set in stone. It can be amended if both parties are in agreement with the proposed changes. Areas which are commonly changed include child custody, child support, and visitation agreements. These terms are often modified when a significant change in circumstances occurred after the date of the original order, such as a job transfer to another state which directly impacts visitation arrangements.

Another reason for modifying terms can be that a new arrangement is in the best interests of the child or children involved. Depending upon the wording of your original marital settlement agreement, alimony provisions may or may not be modifiable. Check with your attorney prior to your court date make sure the terms of your original agreement are clear regarding whether spousal support will be modifiable or not.