Definition of a Divorce Settlement Agreement
A divorce settlement agreement or marital settlement agreement is the document that is known elsewhere as a divorce decree. Essentially, the divorce settlement agreement is a judicially enforceable contract between the parties establishing and outlining in detail the terms of the divorce with which they have reached agreement . Therefore, the divorce settlement agreement should be carefully and thoughtfully drafted as it is an integral part of the divorce process. Once signed, the divorce settlement agreement becomes part of your final divorce order to which you and your spouse are bound by law to comply. A divorce settlement agreement should be signed only after careful consideration and thoughtful reflection with a full understanding of the meaning of its terms and conditions.
Legal Requirements in Georgia
Specific legal requirements for a valid divorce settlement agreement in Georgia (lawyers and lay persons may not enforce or abide by the same rules): As a general rule in Georgia settlement agreements of all types are governed by the Official Code of Georgia Annotated (O.C.G.A.) sections 19-6-9 and 19-6-15. However, in divorce cases they are also affected by O.C.G.A. 19-5-3 and, as a practical matter, because the action is venued in the family division, the rules of the court will also apply. This article will only address O.C.G.A. 19-6-9, 19-6-15 and 19-5-3. The basis for the lawyers’ fear of contracts with non-lawyers is more based on the fact that they can never assure the terms be acceptable to both parties if only one has a lawyer advising them, but in Georgia the requirement for a settlement agreement to be binding is found in O.C.G.A. 19-6-9 and 19-6-15. In order for the settlement agreement to be binding in Georgia there needs to be a finalization of the agreement as set forth above AND that it be filed in the proper court and/or title of the owned property be transferred at closing etc. The actual entry of the court order is not the end of the obligation to perform all terms of the agreement.
Typical Provisions of the Agreement
Regardless of how complex the divorce is or how large (or complicated) the couple’s marital estate is, nearly all divorce settlement agreements typically include the following elements:
Division of Assets
The parties will almost always select how they will divide their assets. In Georgia, perhaps the most common division method is a 50/50 split. The parties can divide assets equally by simply valuing each asset and then splitting the assets, where one party will be receiving cash (or the equity in a home, or business, or vehicle) in lieu of a marital asset. Debts of the parties will also be divided in this manner, meaning the spouse who is entitled to receive an asset of the parties and who has been ordered to pay to their spouse an amount (either in cash or in property) will also be allocated a share of the debts. Parties can also agree to allocate their debts, these agreements cannot eliminate creditors’ rights to pursue the parties on any debts they have incurred.
Child Custody
Essentially, child custody is the parenting relationship the parents maintain with their kids after their divorce. There are several factors a court takes into account in deciding what custody arrangement is best for a family. Georgia considers one of the most important factors to be whether or not there has been a pattern of domestic abuse by the parents (including those within the household). Child custody can be simple – such as a standard parenting plan – or complex, where the parties need to agree on legal custody and physical custody.
Alimony
Alimony is simply support one spouse pays to the other following a divorce. This concept isn’t one-size-fits-all, as there are many different types of alimony that may be awarded, including temporary alimony (while the divorce is pending), periodic alimony (paid for a fixed period of time), rehabilitative alimony (to help obtain needed education or skills), and lump-sum alimony (paid in one or multiple installment). Notably, spouses are not required to pay alimony in Georgia if the court deems it’s unnecessary.
Division of Debt
Lastly, parties will almost always agree on how to divide their debts. Similar to dividing marital property, couples can split their debts in half, or whichever way makes the most sense.
Reaching a Reasonable Agreement
Once the parties have agreed on the major issues in the divorce case, or have been awarded a trial court judgment and agreed to abide by its terms, our office will draft, or prepare a proposed drafting agenda, for the final document. We call this our "Marital Settlement Agreement," or simply MSA, which is to become binding if the Court Approves with its signature. Once we arrive at the final draft, both parties will be given ample time to review and ask questions before asking the court to finalize the agreement. But – and this is a very big but – there are many clients who will ignore a draft or proposed agreement until presented with something they can "comment on". In our office, even more so than in other firms, we usually start with an agreement and negotiate over its terms – only after the dust settles will we often "draft" anything. The reason for this is simple: almost all Georgia family law attorneys agree that it is better to draw up the final draft after the parties have reached an agreement in principle, at which time the parties’ attorneys work out the final language. All too often the parties themselves propose a change to a final document without consulting us: this is a great way to raise the prices in your divorce since I can assure you that whenever a self-represented party puts pen to paper without consulting an attorney for what the language should say, he or she has literally changed lawyers without realizing it! The process of negotiating a final agreement is the most important work a divorce lawyer will do. With this in mind, we check on what both parties have in mind: "what are the issues?" "are we prepared to concede anything on these issues?" "are there special circumstances that must be addressed?" Once we have an idea of what the final agreement might include, we alert the other side to what the changes might be, then negotiate over these items, usually by telephone (with follow-up emails confirming what is agreed upon). The final agreement should be ready in a few days. Finally, if the agreement is not reached, both parties will return to court for a contested hearing of the issues, where each side presents evidence to the judge, who makes a decision binding upon both parties. When finally agreeing, or contesting, the parties will be able to finalize the divorce case.
Amending a Settlement Agreement
Georgia law is clear that a divorce settlement agreement cannot be modified merely by an express agreement between the parties. A party seeking to modify the terms of a divorce settlement agreement must file a formal petition in court, and must have either a material change of circumstances or the other party’s consent to their proposed modification. Landers v. Landers, 278 Ga. 345, 602 S.E.2d 596 (2004) .
If the parties seek to resolve their differences without involving the court, they may agree in mediation to amend the terms of their divorce settlement agreement. The new agreement must be in writing and signed by both parties to be enforceable. McGowan, 265 Ga. App. at 744, 595 S.E.2d at 466.
Some of the issues that often have to be addressed in the context of modifying a divorce settlement agreement include/divided assets and debits; wife’s surname; alimony; custody; and child support.
Enforcement and Legal Guidance
A divorce settlement agreement in Georgia is enforced under the law as though it was a judgment of the court. When either party refuses to comply with the agreement, the other party can seek redress for the wrong (perhaps the withholding of property or support) from the court. The court will enter a judgment against the party who had violated the agreement. A judgment for money damages can be enforced by a process known as garnishment. A judgment that one party is to convey property to the other can be enforced similarly to specific performance of a contract. If the terms of agreement require a deed, a new deed may not have to be signed. The court may simply order a party to sign a deed to the property or grant a new deed in the event that one cannot be found or in the event one has not been made.
While most divorce settlements will be honored and abided by at the time of the divorce, there are instances where one party actually breaching the divorce settlement agreement. In that instance, the party who feels like he or she is being harmed because the other party is not complying with the terms of the agreement, may seek to file an action to enforce the terms of that agreement. An experienced divorce lawyer who has helped many clients who have faced this issue may be able to help you.
Common Questions
My spouse and I have reached an agreement on the major issues in our divorce, what is next?
After reaching an agreement with your spouse on issues like child support, visitation, alimony and any marital property division, the next step is to have a written agreement prepared by your attorney called a settlement agreement.
Why do we need to have our agreements in writing?
While an oral agreement can be enforceable, it is always better practice to have the agreements memorialized in writing. If the terms are vague or not entirely clear in terms of what was agreed on, you may face a difficult situation in the future where the other party could dispute the terms of the agreement.
Are the terms of the agreement automatically enforced by a court?
No , you must file the agreement with the court for approval in order for the agreement to become enforceable. In some cases, a hearing will be required before entry of the settlement agreement.
Is a settlement agreement the same thing as a divorce decree or final order?
No. The settlement agreement is just an agreement between the parties as to the terms at which they would like to resolve their case. The orders of the court are separate from the settlement agreement and will set out the terms of the agreement as a Court Order, enforceable by the law. The divorce decree will also set out the terms of your divorce and your final judgment of divorce.