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The Divorce Encyclopedia
Marital Agreement; Marital Settlement Agreement


Term Definition Marital Agreement; Marital Settlement Agreement - a written agreement entered into by divorcing spouses stating their rights and agreements pertaining to property, support and custody.
Application in Divorce Couples divide the marital estate and memorialize the arrangement in a marital settlement agreement. At a minimum, this agreement divides what the couple own and what they owe and establishes the terms and conditions for support, life and medical insurance, and the legal and physical custody of children and visitation, if applicable.

To write it, a couple needs all the financial information they would need if they were going to a financial planner to do estate planning for retirement.

The journey from the decision to divorce, punctuated by a date of separation, to a marital settlement agreement, which will approved by a court and is a necessary step in divorce, may be turbulent and troubled, enervating and exhausting.

As a general rule, couples who are separated find it easier to reach agreement when both have accepted that the marriage is ending. A spouse clinging to the debris of hope probably is not in a position emotionally to negotiate a marital settlement agreement and may resist negotiating in the mistaken hope of reconciliation.

Property settlements are generally permanent, and spouses, who during happier times thought "we," must now think "I." Even when the marriage is ending after long and unhappy times, this is not as easy as it seems. In hammering out an accord, spouses must think long-term and short-term. For example, when Rufus offers Rhonda their two-seat Mercedes convertible she may be very tempted to take it in lieu of their ownership of a mutual fund. The offer of the car has its short-term attraction, but the chances are the mutual fund is a better long-term bet. The car is not liquid and depreciates; the mutual fund is liquid and appreciates. Decisions like these, however, must be made and put in writing and they must be made when two people making them are not always their own best judge of their own best interests.

That said, whatever the spouses can agree to on their own, acting as their own negotiators, is less item on the agenda of unfinished business, and that means more money to divide between the two of them and for their children.

Sometimes couples sketch out a rough draft of an agreement and then pass it back and forth between respective lawyers. Sometimes a third-party can help, but in no case can one lawyer represent the interests of both them in the writing of the agreement.

See Agreement.

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