Never, in the history of love, has ever been two relationships that were exactly the same. As a result, no two divorces are identical, either. This is why, when it comes to divorce, you’ll have options.
In California, there are several different types of divorce, and not all require a trial. Indeed, couples who can communicate and compromise need only draft a settlement agreement (and submit it to a judge for approval), in order to get divorced.
A divorce settlement agreement is an agreement couples reach on their own, which encompasses the terms of their split. Because it’s faster, less expensive, and more flexible than litigation, this method is an attractive option for divorcing couples.
Here’s what you need to know about divorce settlement agreements in California, and what the Maples Family Law team can do to help you with yours.
What is a Divorce Settlement Agreement?
A divorce settlement agreement is a legal document that represents the decisions reached by a couple during their out of court divorce negotiations. Its purpose is to document these decisions, and to outline how the couple would like to proceed, moving forward.
Some of the topics outlined in this agreement might include things like:
- The division of marital property;
- The assignment of debt responsibility;
- The terms of child custody and visitation;
- The delegation of child support; as well as,
- The duration and allocation of alimony.
In addition, settlement agreements provide a way for spouses to change their last name, should they choose to do so.
Because this document is drafted outside of court, it’s much faster and less expensive than a contentious litigation process. In addition, couples have a lot more deference in determining the outcome of their own fate.
How to Get a Settlement Agreement?
In order to get a settlement agreement, you and your spouse must be able to… well… settle the terms of your divorce outside of court. (A.K.A. Without a judge breathing down your neck.)
This can be done via a couple of different options, with most popular being: uncontested divorce, mediation, and collaborative divorce. In some cases, you might even reach a settlement while preparing for divorce litigation (say, if your judge offered you one last chance to settle, before opening your trial).
Once finalized, a divorce settlement agreement must be signed and notarized by both spouses. But—while it might look, act, smell, and think in much the same way—it is not technically not the same thing as a final divorce order.
At least not yet…
Settlement Agreement Transformation
Like a wiggly, green caterpillar, a validly executed settlement agreement contains all the necessary ingredients to become a beautiful butterfly (or, in other words, your final divorce order). However, neither can reach their final destiny without one last, important step.
For a butterfly, that step is a chrysalis. For your settlement agreement, it’s judicial approval.
According to California family law, this approval is critical, and simply having a settlement agreement will not be enough to finalize your divorce. And, without finalization, the terms you so carefully negotiated will not be enforceable.
With judicial approval, however, your itty green caterpillar transforms, changing from settlement agreement into a final divorce order, with fully enforceable terms.
Will a Judge Approve My Agreement?
As a general rule, judges don’t usually have a problem approving an agreement that a couple comes up with on their own. (After all, they’re overworked and swamped, so if spouses agree, who are they to fight it?)
There are, however, a few things that could hold up this approval, and before giving blanket approval to your terms, your judge will likely pause to check for the following:
1. Residency Requirements
At the state level, this means one of you must be a resident for at least six months; in addition, most counties will require at least three. (Although, there are a few limited exceptions.)
2. Best Interest of the Child
California family law requires that all child custody decisions be made according to a child’s best interest. Hence, your judge will be checking to make sure your proposed parenting plan is the one that will best serve your child’s long-term health and happiness.
If something isn’t right, your judge will likely send you back to negotiations with suggestions on how to revise. If you and your spouse cannot agree on the fix, then the judge will simply make the revisions for you.
3. CA Child Support Guidelines
Part of your custody evaluation will include a thorough analysis of your child support arrangements.
In California, certain minimums must be met, in order to receive approval. This is true, even if you and your spouse agree on what the amount should be. An agreement that does not meet these minimums will not be approved.
4. Property Division
California family law states that any division of marital property must be “just and right.” While there’s a little subjectivity involved in determining exactly what that means, we can say for certain that if it looks disproportionately skewed to one side or the other, your judge will not approve the split.
In addition to having to renegotiate the terms, a skewed arrangement could also arouse suspicions of undue influence, undisclosed assets, or even emotional abuse. Hence, it’s better to simply make the division fair the first time.
While attorneys are not required in California, the presence of them is often a good indication that the agreement was fair. Things get a little iffy, however, if neither one was represented, or, if one spouse had an attorney and the other didn’t.
Generally speaking, spouses should not be sharing an attorney during this process. (It creates a conflict of interests.) To ensure both sides are fairly and earnestly represented during divorce, each individual should be represented by their own, independent attorney.
What Happens if I Change My Mind?
Changing your mind before a settlement agreement is signed is perfectly fine; during negotiations, either side can change their mind for any reason, at any time. When this happens, spouses will simply resume discussions with the new information in mind.
If you change your mind after the agreement has been signed, however, that’s a different story.
The whole purpose of a settlement agreement is to document the terms of a negotiation; a way to lock your decisions into place, so no one can go back later and call foul. As a result, once you sign the document, it’s pretty difficult to change.
After signing, you’ll only have a limited amount of time to rescind before there’s nothing your attorney can do. This is done by filing a motion with the court, and showing your judge why changes are necessary.
Once your divorce has been finalized, though, there’s almost nothing you can do. Unless you can show undisclosed property, undue influence, or fraud. In these situations, the court may reopen the case and rescind the agreement. Otherwise, your only option will be to file a motion to modify.
Do You Need a Divorce Settlement Agreement in California?
When you get divorced, there are a lot of things you’ll be required to do. Thankfully, however, going to court isn’t one of them.
If you have more questions about divorce settlement agreements—and whether one might work for your situation—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out which type of divorce that’s right for you.