A Divorce Settlement Agreement is a formal legal document that is also commonly referred to as a “Settlement Agreement,” “Marital Settlement Agreement” or a “Divorce Agreement” because of its basic purpose of recording the agreements made between two divorcing spouses for the purpose of completing a divorce without having to go to trial. The Divorce Settlement Agreement ultimately becomes part of the court’s order in an uncontested divorce and it terms can be enforced by the court. A Divorce Settlement Agreement should include all the agreements made between the parties in regard to child custody, child or spousal support, and the division of marital assets and debts. Once a Divorce Settlement Agreement is signed by both parties in the presence of a notary, it can be filed with the court, usually with several other documents. All Georgia courts recognize that agreements made between spouses in a divorce case to settle all issues concerning the divorce, including but not limited to: asset and property division, child custody and visitation, alimony child support, and division of debt are enforceable. See Sanders v. Colwell, 248 Ga. 376 (1981).
Is a Divorce Settlement Agreement required before separation?
A Divorce Settlement Agreement is not required before the divorcing couple can separate. The divorce party members can reach an agreeable conclusion before or after they separate or even during the actual divorce process, which is most common. It is good to remember though; the whole thing could be a bit easier if a mutually beneficial agreement can be reached earlier in the divorce process by avoiding any unnecessary fees. If you feel like you don’t need a settlement agreement due to the fact that you have little to no marital property or children you might be correct, but for the purpose of future records and to have concrete evidence of the day you divorced and the reasons why, it is recommended that you have a Divorce Settlement Agreement so as to have a written agreement as opposed to a verbal one. A Divorce Settlement Agreement is also required to be filed with the court to prove that your case is actually it is an uncontested divorce.
Is a Divorce Attorney required?
It is not required to have an attorney for the divorce process or during the writing a Divorce Settlement Agreement. But if you want to have a divorce settlement agreement that provides for your best interests while also being fair, it is recommended that you hire your own attorney. This is especially true if your spouse has also hired a divorce attorney and is presenting you with an already prepared Divorce Settlement Agreement. In this situation, you can have your own divorce attorney review the divorce papers on your behalf and make sure that your best interests are being protected and the your are signing a favorable agreement in the end. There are also many other services an experienced divorce attorney can provide that will make the uncontested divorce process much easier, such as contacting the court on your behalf and filing the motions necessary to possibly avoid having to go to court to receive your final decree of divorce.
One or Two Divorce Attorneys?
If both parties earnestly want to settle on good faith, it is recommended that they do not unreasonably stall the negotiations, or the other spouse could get frustrated and become unreasonable. The other spouse may even become so frustrated that they file a contested divorce, adding to the cost and complexity of a case that could have been settled out of court. If the divorcing spouses have managed to reach an agreeable divorce agreement between them and want to hire an attorney to review or draft the agreement, it is recommended that each spouse retain their own attorney. This is because a divorce attorney cannot ethically represent both parties, and it is best to have your own attorney for the purpose of making sure your interests are protected in the Divorce Settlement Agreement.
What is the significance of a Divorce Settlement Agreement?
If the divorcing spouses can reach a mutually acceptable divorce settlement before the case is brought before the court, either one of the parties attorneys can draft the Divorce Settlement Agreement. Once both parties sign the divorce agreement, it becomes a binding divorce contract, which means that both of the spouses are subject to its terms. When the divorcing spouses actually file for divorce, the signed and notarized Divorce Settlement Agreement can be attached with the petition for divorce, along with a motion asking the court to make it a part of the Final Decree and Judgment of Divorce. The Divorce Settlement Agreement then becomes the court’s order for the divorce. If a divorce agreement is not signed by both of the spouses, then the divorce remains contested. If the parties never reach an agreement and their case goes to trial, the court will draft its own divorce order addressing all the relevant issues, which may be very different from the agreement that the divorcing spouses could have possibly reached.
The signing of a Divorce Settlement Agreement is a very important decision that should not be rushed into. Some people will sign a Divorce Settlement Agreement quickly, only to very much regret it later. This regret usually revolves around promising to pay alimony payments that they cannot realistically afford over a long period of time, or the giving up of assets that should have been equitably divided. Also, the taking on of a large amount of marital debt with nothing in return is a common regret. No party to a divorce should ever sign a divorce agreement because of undue pressure, emotional distress, unreasonable feelings of guilt, duress, threats or an unreasonable fear of going to court. The advice of an experienced attorney can be very helpful in avoiding these mistakes.
What happens if the Divorce Settlement Agreement is not followed?
If at later time the divorced spouses decide to alter the schedule of payment for either child or spouse support that is up to them. However, keep in mind that if you and your divorced spouse verbally agree to a term that is not in the Divorce Settlement Agreement, and subsequently have a disagreement, you can always refer back to the terms of the original divorce agreement. In other words, if the parties cannot otherwise agree, the court’s ordered divorce agreement is what the parties should adhere to, or otherwise they could later be held in contempt of court. Once a divorce settlement agreement has been made a part of the court’s final judgment and decree of divorce, it is binding until it is modified by the court by a subsequent order. Almost any provision in a Divorce Settlement Agreement can be modified by the parties by a subsequent written agreement and ordered by the court. A modification of a divorce agreement can also be filed as a contested matter if the parties cannot reach an agreement.
Contested or Uncontested Divorce – Differences You Need to Know
Divorces can either be contested or uncontested. An uncontested divorce is one where the divorcing party members agree on how they will divide their debts, assets, the custody of their children, alimony (if any) and the amount of child support that is to be paid (if any). A contested divorce is where one spouse (the plaintiff) file for a divorce against the other spouse (the defendant) and there is is not a complete agreement between the parties as to the division of property and debts, support for either the spouse or the children, or other aspects of the divorce. By subsequently entering into a Divorce Settlement Agreement, the parties can still later settle a contested divorce before going to trial.
Marital and Non-Marital Property in Divorce
In the state of Georgia all of the property that is acquired during the marriage is considered marital property, meaning that it belongs to both of the spouses, and is subject to equitable division in a divorce. To determine whether personal or real property is marital or nonmarital, consider the following: if the asset was acquired after the date you were married, it is generally considered marital property. If the asset was acquired before the date of marriage is generally non-marital property. However, if the property was acquired through inheritance or a gift, it is generally always considered non-marital property. However, no matter when or how acquired, if real estate is later titled from one spouse to the other or both spouses, it will generally then be considered marital property. This is not an uncommon event, especially when the real property has been refinanced during the marriage.
How We Can Help
If you are facing a divorce and have questions about the uncontested divorce process in Georgia, call us at 770-609-1247 to speak with one of our knowledgeable divorce lawyers. We have helped hundreds of client settle their divorce cases without the stress of discovery, a trial or even mediation. We can probably help you too. Contact >>