Most people are unprepared for the divorce process and usually have a lot divorce settlement questions.
The terms divorce settlement agreement, divorce agreement, settlement agreement, and marital settlement agreement are the different names used to describe the terms and conditions of a divorce. What name is used in your divorce will depend on where you live.
A divorce settlement agreement is a written document that details all the issues that are resolved when a couple divorces. This includes division of assets and debts, custody and visitation of the minor children (including a parenting plan), as well as alimony and child support.
Reaching a mutual agreement on all these issues is ideal. But spouses don't always agree on how assets and debts will be divided or who will have custody of the children. When this happens, they can try to reach a compromise through settlement negotiations, mediation, or the collaborative divorce process. If they are still unable to reach an agreement, the unresolved issues must be decided by a judge.
It's generally a good idea to have an attorney help you through the process of reaching a settlement agreement. An attorney can review any settlement proposals to make sure everything is addressed that needs to be included. They can also advise you on whether a proposed settlement is fair or not. Most importantly, they can draft the the settlement agreement to present to the court.
With that said, there is nothing stopping you from preparing your own settlement agreement. If you choose to go this route, make sure there is full financial disclosure and that the division of all assets and debts is addressed, as well as child custody and any support provisions. Even if you prepare your own settlement agreement, it's still a good idea to have an attorney review it to make sure it's fair and complete.
If you don't agree with the settlement terms your spouse proposes, don't sign the agreement. You should never sign anything you're not willing to live with. Keep negotiating until both of you are comfortable with the settlement.
Once everything is resolved, all the details will be incorporated into a written settlement agreement to be signed by both spouses. This legal document establishes the terms of your divorce and will be presented to the judge to sign along with any other forms required by your state. If the judge approves it, the settlement agreement will be incorporated into the final divorce order, which can then be enforced by the court.
A finalized divorce settlement is rarely appealed (or overturned), but it can be modified at a later date. A modification is a court order changing your original agreement. Terms that may be modified at a later date generally include child custody and support issues. Alimony may or may not be modified, depending on the provisions of your original agreement. It's possible for financial agreements to be modified if both spouses agree to the changes. You may want to include a clause in your divorce agreement detailing when the settlement agreement may be modified.
Below 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 and understand some of the issues you need to consider before you sign your divorce papers.
Bonnie's Question: My attorney and I have offered a draft settlement agreement. Is there a timeline by which my future ex must respond to the settlement offer? My attorney says there's no way to make him respond and no timeline.
Brette's Answer: Your attorney is right.
Cecilia's Question: My husband has filed for divorce. We are going uncontested. Do we have go to court if I don't agree with the settlement?
Brette Answers: If you cannot agree on a settlement, then you do go to trial. Good luck.
Jana's Question: What will be required or asked of me during a settlement conference as the spouse who initiated divorce?
Brette's Answer: A settlement conference is an attempt to work out a settlement - to find compromise on all the issues in the divorce. It's essentially a meeting to discuss the issues and negotiate on them.
Sydney's Question: I filed for legal and physical custody. He contested in the beginning. We now have a settlement hearing date. Since the initial conference he has agreed to my having sole custody. I do not have a lawyer. Are we able to make an agreement and submit it to the court so that it is a court order so we can avoid the Settlement court date? Or can we both show up and tell the judge we are in agreement?
Brette's Answer: You can do either. You can either submit a stipulation with proposed order or you can just come to the court date and stipulate on the record that you are in agreement.
Shirley's Question: I received a letter from my ex’s lawyer who scheduled a 4 way conference in his office. Do I have to attend this? My husband is a narcissist & alcoholic so my intuition tells me this is a waste of time and money. Why do I need to this? I am not willing to do this 4 way conference in his office if I do not have to.
Brette's Answer: It is usually in your best interest to attempt to settle the case. A refusal to attend settlement negotiations could be looked at as a problem by the court.
Tammy's Question: My ex-husband (we were divorced but financial matters reserved for a later date) and his attorney want me to sign something saying I won't take his retirement but reserve the rest of the financial matters for a later date. Do you have any advice?
Brette's Answer: I wouldn't agree to anything until you can see the big picture - all of the financial proposals at once.
Brenda's Question: My x-husband and I are divorced as of two months ago. I didn't want the divorce, he filed. He says he still loves me and asked me to go away with him for the weekend. If I decide to go will I be jeopardizing anything? We have the community property settlement to do next.
Brette's Reply: You need to consult with your attorney. Doing so could restart the clock on your separation.
Question: Originally, my ex said he would pay for my moving expenses. Now he says he can't afford it and wants to deduct it from the marital settlement amount. Who is responsible for moving expenses of personal property? The agreement also states he will pay me $1K per month for 24 months, but there is no start date. How can I assure the starting date isn't delayed any longer than it already is?
Brette's Answer: Each person is responsible for his or her own moving expenses unless specified otherwise in the decree. The amounts due from the property settlement kick in as soon as the decree is signed, so one payment was due that month and one every month since then. If he's not paying, you can take him back to court for violating the order.
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 should discuss the entire settlement offer with your lawyer, to ensure it is fair and to evaluate the tax impact. For example, in divorces finalized before 2019 an alimony settlement is taxable while a property settlement is not (Beginning January1, 2019 alimony payments are not taxable). Ultimately, how the settlement is described in the divorce papers is very important in this respect. You need to have an attorney handle this for you.
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.
Alicia's Question: My husband wants to do a no-contest divorce and then have a separate notarized agreement for paying me money and my car. If he doesn't pay me, would our notarized agreement hold up in court? What is the difference from filing our agreement with the court or just a notarized agreement?
Brette's Answer: You can do a no contest divorce and incorporate all the things you just listed. If you don't include it, the problem is that the divorce papers require you to certify that this is your complete and entire agreement. Any agreement you make outside is not subject to the same level of enforcement and that kind of agreement may not be enforceable if it is not a contract with all the legal elements (which include consideration - you each have to promise to do something). To protect yourself you want everything included in the divorce.
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.
Margo's Question: We signed a notarized uncontested divorce settlement agreement in our attorney's office. Now he says he is taking me to court and not filing the agreement. Is the agreement legally binding or does it HAVE to be filed first?
Brette's Answer: A settlement does not become a decree until it is filed with and issued by the court. Good luck.
Lesley's Question: Can you make a binding financial agreement without lawyers?
Brette's Answer: Yes, if you submit it to the court along with the other divorce papers and it is entered as an order. It's best to talk to an attorney however so that you cover all the bases and get it done correctly. Good luck.
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.
Sally's Question: The opposing side wants my attorney to redraft the final papers. I've seen the changes and they 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?
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.
Tabitha's Question: My ex and I reached a settlement agreement and his attorney was to write it up and have the judge sign it. I got it back 3 weeks later and it had all been changed. My attorney withdrew from the case and I'm representing myself now. I can't afford another attorney and legal aid won't help because it's a domestic violence case. How can I fight this agreement?
Brette's Answer: You tell the court this is not what you agreed to. Ask to attend mediation or a settlement conference where the terms can be straightened out.
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 Answers: 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.
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.
Melissa's Question: We've both signed our marital settlement agreement. Now he wants to make revisions that I do not agree to. Is this legal?
Brette's Answer: No. If it hasn't been entered into an order by the court it is not legally binding. You must agree to changes or they must be court-ordered.
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 the 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.
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.
Maureen's Question: I made several big mistakes filing for divorce. First, we did our 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 than the two debts I took. He is now suing me for 1/2 of the debt he verbally promised to pay. What can I do since we filed the papers on our own and many mistakes were made?
Brette Answers: 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.
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.
Reanne's Question: My mother and 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 spoken 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.
Sandra's Question: Will my ex have to do everything he agreed to on the divorce paperwork?
Brette's Answer: Yes, a divorce is a court ordered judgment. Failure to comply will result in contempt of court, fines, and possible imprisonment.
Marti's Question: My ex is supposed to pay me a settlement. Divorce papers state that he must give me this money immediately after he receives it. How long do I wait and what are my options if he doesn't give me this money? I have many bills from this divorce and am down to one income, and need this money BADLY to catch up.
Brette's Answer: You file a petition for violation/enforcement with the court. If he doesn't pay he's in contempt of court. If no date is given, I would assume payment would be made within one week.
Loreen's Question: My lawyer signed a pre-divorce order that had my husband paying me a lump sum toward a property settlement in exchange for giving my husband exclusive use of our home. I received an exact date to move out, while he received an approximate date to give me the money. Now what I feared has happened. He did not give the money and is in violation of the order. I cannot leave the residence without the payment! I told my lawyer that I would move out 30 days after receiving payment but he signed the order and I never even got to see it. What do I do?
Brette's Answer: Explain to your lawyer that you want the order enforced and modified to state you do not move until you are paid.
AM's Question: I got divorced 8 years ago. We still own a house together, and the ex wants to take me to court about non-compliance with the Settlement agreement, although I have an email from him saying he will take care of all expenses to do with the house. Is email communication valid proof in a court of law?
Brette's Answer: No. If your order states you are to pay something, you are legally liable. The only way to get that changed is to go to court for a modification of the order.
Renee's Question: My husband is self-employed and we are getting a divorce. He hired a lawyer to write up what we agree upon in our settlement agreement. I want my money to come through a third party because I know he won't just give me the money each month. How would I request the money come through a 3rd party and who would the 3rd party be?
Brette's Answer: I don't know how you would do that unless you had the order say he had to have his bank pay you directly (through online automatic payments). The problem is you're still left having to enforce it yourself. If he doesn't have the money there to pay, you still have to deal with him. Another idea I suppose would be for his attorney to issue the checks.
Hazel's Question: I lost my final divorce settlement copy, and now my ex-husband has died. Is possible to get another one?
Brette's Answer: Yes. You may have to go to the courthouse to obtain it though.
© WomansDivorce.com | Updated June 5, 2023