What does “illegal reason” mean?
Your divorce settlement agreement should follow the basic contract rules and requirements of the court plus all applicable state laws. You cannot have illegal reasons included in your agreement, meaning that you can’t stipulate anything that breaks the state requirements. For example, you cannot place conditions that terminate child support if your children play certain sports or don’t play certain sports. Child support is required and cannot be stopped. As another example, dangerous or illegal behavior such as selling drugs or fencing stolen property cannot be part of a property settlement.
State laws vary. A divorce settlement agreement is a contract and must meet basic contract rules and requirements or the court will not accept it.
What are some of the requirements for a divorce settlement agreement to be valid?
A divorce settlement agreement must be negotiated without duress or threats. It should be fully free and fair, negotiated in good faith by both parties. It must avoid “sign or you will never see your kids again” kind of aggressive behavior. The requirements should also focus on the children, because they don’t have much say in the process but they are directly affected. The courts and state law go to great lengths to provide for the protection of the rights of children who are undergoing the divorce of their parents.
The laws of the state for the rights of children are as follows but not limited to:
- Continuation of relationship with both parents.
- Be treated like a human being and not as a property. This means recognizing the unique individuality of each child as well as his or her ideas, feeling and desires.
- Care and guidance of both parents.
- Not being influenced by one parent to see the other parent differently.
- Freedom to express love, respect, and friendship to both parents and never having to hide or be ashamed of such emotions.
- Making an explanation why parents are divorcing and emphasizing their actions are not the cause of their divorce.
- Letting the child understand that they are not the source or cause of their parents’ divorce.
- Giving the child continuous and honest feedback regarding the divorce process and the impact it may cause in the changing relationship within the family.
- Continued contact with the children and apparent explanations in any changes in plans or cancellations.
- Parents should not imply any manipulative bargaining tool for the children to enjoy a positive relationship with each parent.
What if I suspect that my spouse is hiding something?
Anything that can be construed as “hiding something” can represent fraud and will invalidate the agreement. Once proven, this move can hurt credibility in the eyes the judge or the court. Being transparent and open about everything is essential when it comes to divorce. Agreements should be valid and without any “fraud in the inducement” that can result in signing a document without knowing the underlying facts.
Can I present an agreement to my spouse and make him or her sign it?
An “agreement” means that both parties sign voluntarily, without duress or coercion. You cannot force your spouse to sign a divorce settlement agreement or compel an agreement to the terms you wish to impose on him or her in the agreement. Negotiations should result in a “win-win” outcome. Be fair. Consider not only your own wishes but also those of your spouse. This can be difficult during the emotional turmoil that accompanies the end of a marriage, but it will help both spouses transition to a more positive future. Setting aside hostilities with one another and focusing on reaching a mutually beneficial agreement should be done especially if you have children to think about. Their welfare should be given great consideration. Divorce ends the bond of marriage, but the bond of parenthood stays forever.
If a couple negotiates an agreement, will it be automatically approved by the court?
Not necessarily. The court will still review the details of the agreement, trying to make certain that all important issues are considered, negotiated, and agreed upon by both persons. The judge does not want to overlook anything that can lead to modifications and appeal in the future as one or both parties think more deeply about critical issues such as property division, debts, child custody, child support, visitation, debt, alimony, insurance, taxes, etc.
Why does the Judge scrutinize the agreement?
A divorce settlement agreement should be mutually fair to both spouses. The judge will do all that he or she can to make sure the agreement is not a product of overreaching, duress, or fraud. A one sided contract is generally not conducive to a positive long-term outcome and is sometimes the result of one party being more aggressive and the other party more passive. The court gives extra consideration when the couple has children. Issues like child support and child custody and what is best for the children in general are of paramount importance.
Can the divorce settlement agreement specify how the parties will file taxes after divorce?
Yes. As long as the couple remains married, they may file federal and state taxes either jointly or separately. The divorce can include an agreement on the tax filing status of the parties.
How does the marital separation agreement affect the divorce settlement agreement?
A marital separation agreement can be “merged” or “incorporated” into the divorce agreement or court judgments. “Merged” means the marital separation settlement agreement has been adopted by the court as a part of the divorce or divorce decree or judgment. An “incorporated” agreement, on the other hand, leaves the marital separation agreement as a stand-alone document and is “incorporated by reference” only into the divorce judgment or decree of the court.
What the difference between merged and incorporated?
The marital separation agreements legal function is basically the same whether it is merged or incorporated into the divorce judgment. The contract’s expectations should be fulfilled. The difference will be apparent depending on the issues that can arise from the agreement. The agreement can be merged when it becomes a court order that can result in punishment or inducement. When the contract is incorporated, it has a different remedy for noncompliance if the contract is breached.
How are “merged and” incorporated” different?
In a merged agreement, you can only file suit on the entire merged agreement. You cannot single out the terms of the divorce agreement. In an incorporated agreement, the marital settlement agreement stands alone as a contract and you can file suit on that agreement individually. Noncompliance with a merged contract can result to a suit for breach of contract that can force compliance. This is enforced by the court, but if you don’t initially comply it can lead to contempt of court that can land a defendant in jail.
Is a merged divorce settlement agreement better?
It all depends upon on what you are trying to accomplish. Merged agreements are no longer independent, which means they cannot be sued upon as contracts and will be enforced only as a court order. Having a merged agreement will prevent the right to sue for breach of that contract individually, which may not be what you want.
Does the” independent life” of an agreement have any effects on the decree?
A great deal of significance can occur if you want to modify an agreement, whether it be merged or incorporated. Since a merged agreement is considered a court order, court’s orders are subject to modification which includes custody and support. When the agreement is totally merged, even maintenance and alimony is completely modifiable. If you want your modification difficult, you can opt to have your agreement incorporated rather than merged in order to work it on your advantage.
Source: 1-2-Law: www.12law.com