Divorce Settlement QuestionsBelow are some of the common divorce settlement questions that often arise when people are going through a divorce. As you read through the responses from the legal advisor, you can gain insight into your own situation.
Do we have to go to court if we can't reach a settlement? Cecilia's Question: My husband has filed for divorce. We are going uncontested. What if I don't agree with the settlement. DO WE GO TO COURT? Brette's Answer: If you cannot agree on a settlement, then you do go to trial. Good luck. Would a verbal settlement agreement be enforceable? Trish's Question: My husband wants to have shared physical and legal custody of 2 children. He wants me to waive the support on the court forms and promises to pay me 400 a month. What can I do if I agree to this and he doesn't pay? Brette's Answer: Never, ever make any monetary agreement outside of your settlement papers. It is not enforceable. Is an agreement that's not part of the court order enforceable? Carin's Question: In my divorce settlement my husband wants me to carry a 2nd. note on his commercial property but does not want this to be a part of court order. Is this a good idea? I think he is trying to get away with something. Brette's Answer: Do not agree to anything outside of the court settlement. When you sign it, you must specify that is your complete agreement. Anything you agree to outside of that is not enforceable. » Return to top Is a settlement agreement valid if it's not filed with the court? Marigo's Question: My husband and I signed a notarized settlement agreement in our attorney's office. It has not been filed with the court. Is the agreement legally binding or does it HAVE to filed first? Brette's Answer: It's not a court order until the court decrees it. Good luck. We didn't have a settlement agreement and now it's a mess. Lucy's Question: I went ahead and filed for a quick divorce so I could remarry quickly. However, I did not mention the house, kids, or financial agreements since my husband said he would agree to whatever I wanted. Now, he is not agreeing and we are constantly arguing over the house (which he won't vacate), he is taking money from our accounts, and not agreeing to help with the kids. I am set to be married in a few weeks to another man, but do I need to postpone my marriage because of this tangled mess? Brette's Answer: If you are legally divorced you may legally remarry. However it sounds like your divorce case needs to be reopened to deal with the asset you failed to disclose. You would have had to swear at the time of the divorce that you provided complete information, so technically you could face a perjury problem. You need to get an attorney ASAP who can sort this out and hopefully just help you come to a legally binding settlement. » Return to top Can we reach a binding financial agreement without lawyers? Lesley's Question: Can you make a binding financial agreement without lawyers? Brette's Answer: Yes, if you submit it to the court and it is entered as an order. Good luck. Reviewing Settlement Documents Prior To Signing Branwig's Question: Should I get a lawyer to review the settlement documents my husband filled out? Brette's Answer: Most definitely. It is always wise to have an attorney review settlement documents before signing them. » Return to top Do I have to pay taxes on the divorce settlement? Maxine's Question: My husband has offered me cash settlement in our divorce. Do I have to pay taxes on this settlement, and is he going to claim it on his income tax. If this is taxable, is there any way around it? Brette's Answer: You need to discuss the entire settlement offer with your attorney, to make sure it is fair but also to minimize the tax impact. A property settlement is not taxable, but an alimony settlement is. It is very important how the settlement is described in the papers. You need an attorney to handle this for you. » Return to top The proposed changes aren't what we agreed to. Sally's Question: The opposing side is wanting my attorney to redraft the final papers. I've seen the changes and the are very unfair and not what was agreed upon in court for final hearing. Can they get away with that? Do I have to sign? I will refuse. Brette's Answer: You need to have a conversation with your attorney about what exactly the changes are. If they do not match what was agreed upon, you should be clear that you won't sign them. Be certain though of what you agreed to. What if I don't agree to finalize the settlement? Linda's Question: We came to a settlement last month, but it isn't recorded yet. Can I change the settlement? My layer is pushing me to get this done or it will be dismissed. Will I get in trouble if I just walk away now? Brette's Answer: You're not required to finalize your settlement. It's a choice. However if you don't finalize it, your husband may choose to pursue the divorce without your consent. It's in your best interest to get this done. If you want to change some of the terms, you should talk to your lawyer about doing so. What if I didn't sign the agreement during the final court hearing? Andrea's Question: I have had my final court date. The judge heard the settlement and my lawyer is the one who prepared the settlement agreement. I refused to review and sign the agreement to be entered for judgment. Is the settlement agreement final? Brette's Answer: Why would you agree to a settlement and then refuse to sign it? If you had any objections to it, the time to raise them was when the settlement was being created. » Return to top Changing the Settlement Agreement Laurie's Question: I'm in the divorce process. My husband has a lawyer, but I couldn't afford one. He's taking the house, his stocks, pensions, and doesn't want me to have anything. He even wants joint custody without having to pay child support. I signed the divorce decree already, but it's not fair. Will the judge still have the final say, or is it too late because I signed the papers? Brette's Answer: If the decree has been issued, the case is over. However, if you signed a settlement or stipulation, you should be able to revoke it and tell the judge you won't agree to the terms. You should call your local bar association and find out about free legal services. You might also want to get a free consultation with an attorney because very often the moneyed spouse can be ordered to pay the attorney's fees for the non-moneyed spouse. » Return to top How do we change the settlement agreement? Vea's Question: I am pro se in my divorce, and my husband has an attorney. We settled our divorce and signed a contract stating that all issues are settled. Now his attorney is saying she forgot to address the tax exemption and she wants to change it to allow him to claim one of the children. We did not mention this issue at all during our mediation so that section was crossed out. Do I have to break the binding agreement to allow her to change the tax exemption? Brette's Answer: You can simply amend the settlement. Can I help my parents change the alimony order? Reanne's Question: My mother & father are going through a nasty divorce. They just went to trial & the judge granted one pay the other alimony - much more than the other can afford. I have spoke to both of them & they have agreed with me to stop all of the nonsense. How can I overturn the judge's decision & end the lawyer fees for both of them? What paperwork would I need them to sign, as I will act as a mediator? Brette's Answer: While I think it is great you've talked some sense into your parents, you have no official role in this case. If they want to withdraw the case or enter a settlement, they have to be the ones to do it. They need to let their attorneys know or contact the court. They can fire their attorneys any time they want and appear in court on their own. Does my ex have to comply with the divorce agreement? Sandra's Question: Will my ex have to do everything he agreed to on the divorce papers? Brette's Answer: Yes, a divorce is a court ordered judgment. Failure to comply results in contempt of court. » Return to top Can a settlement agreement be changed if we didn't use a lawyer? Maureen's Question: I made several big mistakes filing for divorce. First, we did are own papers without lawyers or appearing in court. I took my student loan debt (which we were married 1/2 way through my schooling) and a car loan. We had other debt that we did not add into papers. These were collection debts he said he would pay. There is nothing in divorce papers other then the two debts I took. He is now suing me for 1/2 of the debt he verbally promised to pay. Since we filed the papers on our own and many mistakes were made, is there any thing I can do? Brette's Answer: The problem is that most divorce settlements state that the written agreement is the entire and complete agreement of the parties. I think you should consult an attorney to see if there is any wiggle room in the papers you filed. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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