Settlement Agreement (Uncontested)/More Info


Property Settlement Agreement
 
Additional Information 
 
The great majority of divorces are "uncontested."  That is, the parties have reached an agreement about division of their property and other important matters.  If the divorce is "contested", that is, there is no agreement, a trial is held and a judge makes the final decision on these matters.   

Before a court will approve an uncontested divorce, the court must be satisfied that the Husband and Wife have agreed to settle their various claims against each other.  The court will usually accept a settlement agreement, like this one, particularly if each party has had the advice of an independent attorney. The settlement is put in writing with this agreement.  The divorcing couple can save money on legal fees by asking their respective lawyers to review it, not write it from scratch. 

This Property Settlement Agreement is useful only if the couple has a fundamental understanding of who will get what property, if there will be maintenance and how much, and the care and support of any minor children.  These are often difficult issues to sort through, especially when suffering from the trauma of a broken marriage.   

If you have difficulty resolving these issues, you may want to get outside help.  One place to go is an experienced domestic relations lawyer.  A good lawyer can advise you and guide you as to what rights you have under the law, as well as the kinds of things you should reasonably demand as a part of the settlement. 

Another approach is to go to a trained mediator.  A mediator will not give legal advice, but can help the couple sort through emotional issues so that they have a better chance of reaching a settlement.  To find a mediator near you, ask your attorney for a referral. 

Residency Requirements

Before you can file a petition for divorce, you must meet the state's residency requirements.  This period is usually between 90 days and a year.  Until at least one person has lived in the state for the required period, the court will not grant the divorce.  Make sure that you meet a state's residency requirement before proceeding.   

Dividing Property 

Each state has its own laws and guidelines for dividing property.  The state laws controlling property division can be divided into two categories: Community Property and Common Law.   

In Community Property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), any property purchased during the marriage, regardless of who paid for it, is owned equally by the Husband and Wife.   

In the Common Law states (all of the non-Community Property states), the laws and rules direct that assets be distributed in an equitable fashion.  The courts may take into account any number of factors, such as the length of the marriage, each party's earning power, life style and, in some states, the fault of each party in the breakdown of the marriage. 

For a further discussion of these and other issues, see the divorce oriented Home Legal Topics, in particular "Community Property" and "Divorce - Settlement Agreements". 

Alimony

Alimony (now often called spousal support or maintenance) is not guaranteed to either party by law.  Most courts have considerable discretion about whether and how much alimony should be paid.  With two career couples, courts often choose not to require any alimony payments. 

For more information about alimony rules, see the Home Legal Topic "Divorce - Settlement Agreements". 

Children 
 
The most sensitive and difficult area to handle is the custody and care of minor children.  Parents must sort through the issues of the right to make traditional parental decisions about the child (legal custody) and the right to physical custody. Historically, there was a presumption that custody with the mother was viewed as best for the child.  The trend in modern law is to award "joint custody".  In this case, the parents share legal custody, physical custody, or both.  Many courts still adhere to the notion that the mother is the best custodial parent, making it an uphill battle for fathers that insist on taking an equal role.   

It is almost certain that one parent will be required to pay child support to the other.  States now have standards for determining how much support should be paid, and by whom.  Courts in some states may deviate from these standards, while others cannot. For information about the guidelines in your state, contact a local lawyer or call your state court's clerk.