What Is a Divorce Settlement Agreement?

A divorce settlement agreement is a written contract between spouses who are getting divorced. The agreement outlines each person's rights and responsibilities after divorce, including how they will divide property and debts, whether either spouse will pay spousal support (alimony), and any child custody and child support arrangements. Once signed and approved by a judge, the agreement becomes legally binding and is typically incorporated (made part of) the final divorce decree.

If you and your spouse can resolve your issues without going to trial, you'll save time and money while maintaining maximum control over the outcome. Here's an overview of how settlement agreements work, when they become legally enforceable, whether you need to hire a lawyer to prepare one, and what happens if you need to change it later.

What Are Divorce Settlement Agreements Called?

States have different names for divorce settlement agreements. The name doesn't change the legal effect of the document. You might hear it called a:

• marital settlement agreement
• separation agreement
• separation and property settlement agreement
• property settlement agreement, or
• marital termination agreement.

When Do You Sign a Divorce Settlement Agreement?

You don't need to enter into an agreement before you separate. You can negotiate and sign a divorce settlement agreement before or after you separate or file for divorce. Some couples who are splitting amicably or those with limited assets and no children may be able to reach an agreement fairly quickly. Other couples reach an agreement through divorce mediation, while still others wait until right before their divorce trial.

In most cases, if you want to save money and minimize stress, the sooner you can settle your case, the better.

Should You Hire a Lawyer to Prepare a Divorce Settlement Agreement?

You don't have to hire a lawyer to draft or review a divorce settlement agreement, but it's highly recommended, particularly if your soon-to-be-ex has a lawyer. Legal terms like "sole legal custody," "exclusive possession," "timely indemnify and hold harmless," and "relinquish and waive all future claims" have important and particular meanings. Without legal training, you might miss something and inadvertently give up important rights.

Paying a lawyer to protect your interests now can save you money—or something even more precious, like time with your children—in the long term.

If you do represent yourself, take advantage of free resources like court self-help centers and do your homework. Check out Nolo's Essential Guide to Divorce to understand your rights during separation and make informed decisions about property, custody, and support.

What If We Settle Everything Before Going to Court?

If you settle everything before taking your divorce case to court, an attorney or mediator can write up your agreement. Once both spouses sign it, the divorce agreement becomes a binding contract, which means you both must follow its terms.

Depending on your state's laws, a judge will probably have to review the agreement to make sure the terms are consistent with state law. For example, if your agreement says one spouse must pay $800 per month in child support, the judge will check whether that amount follows your state's child support guidelines.

Once the judge approves it, the agreement gets added to your final divorce judgment and becomes an enforceable court order. If either spouse violates the order later—for example, by missing child support payments—the other spouse can go back to court to enforce the order, and the violating spouse could be held in contempt of court.

What If You Don't Like Your Spouse's Proposed Divorce Agreement?

Don't sign it. Remember, it's just a proposal – a starting point in the negotiation. Even if your spouse or their attorney gave you a deadline to respond, you don't have to do anything. No one can force you to settle until you're ready.

However, waiting too long can backfire. If you refuse to negotiate in good faith, your spouse might become frustrated and stop negotiating altogether. If you want to settle, you need to be willing to move forward and compromise.

Ask an attorney to review your spouse's proposed agreement. If you don't like it, an attorney can help you understand whether what you want is possible and help you negotiate a better deal.

Should You Sign an Agreement You Like?

Even if you're ready to move forward with a settlement, you should have the agreement reviewed by your own attorney if your spouse or your spouse's attorney prepared it. Your spouse's attorney doesn't represent you and doesn't care whether the agreement is fair or provides you with adequate financial resources. You need someone protecting your interests.

Can You Write Our Own Agreement?

You and your spouse can write your own divorce agreement if you're organized and willing to do some homework. This approach works best for simple, uncontested divorces. If you and your spouse are high-conflict, have significant assets or children, it's worth the money to work with a lawyer.

To make a solid do-it-yourself agreement:

• start with your local court's forms or templates
• use plain, specific language
• cover all major topics
• confirm your agreement complies with state law (such as spousal support and child support rules), and
• follow your state's rules for formalizing the agreement, including notarizing, if required.

Even if you draft the agreement yourselves or with the help of an online divorce service, think about having your own lawyer look it over before you sign it. A short consultation can help you catch unclear language and unfair or missing terms.

Can One Attorney Represent Both Spouses?

One attorney can't legally represent both spouses in a divorce. Attorneys have an ethical duty to advocate for their clients' interests, and it's impossible to do that for two people whose interests may conflict. Even if you and your spouse get along and agree on most things, divorce is an inherently adversarial process.

If you and your spouse truly agree on all issues in your divorce, consider divorce mediation. A mediator is a neutral professional who can work with both of you to help create and finalize an agreement. The mediator doesn't represent either of you; their role is to facilitate the negotiation and help you reach your own informed decisions. In some states, the mediator can draft the divorce agreement, and then each spouse ideally would have their own lawyer review it before signing.

What If You Both Decide Not to Follow the Agreement?

If you and your ex-spouse both decide not to follow the agreement, that's up to you. For example, you could modify the alimony payment schedule if you both agree. But if you then have a falling out, each of you has the right to enforce the terms of the original agreement, no matter what you agreed to verbally.

The better practice is to officially make changes in writing and update the court order if necessary.

Can You Modify Your Divorce Settlement Agreement?

The settlement agreement is a contract between you and your spouse. If you both agree to change it before it's incorporated into your divorce decree, you can simply write a new contract. This is not uncommon during negotiations.

Once the agreement is incorporated into your divorce decree, the agreement's terms become part of the court order. You can't simply change them by mutual agreement. You have to go back to court and ask a judge to modify the order. Even if both spouses agree to a change, a judge must still review and approve it before the modified term becomes legally enforceable.

Child support, custody, and visitation orders typically require you to show that something important has changed since the original order and that the new arrangement is in the child's best interests. Common reasons for modifications include job changes, substantial changes in income, or relocations.

You might be able to modify an alimony order, depending on the wording of your original divorce decree. Make sure you understand whether your spousal support obligation can be changed before you finalize your divorce.