Divorce Settlement Agreements

A divorce settlement agreement is a contract agreed upon by the husband and wife that determines the terms of a divorce. Typically the settlement addresses property division, spousal support, child support and custody, and other divorce costs. By law child support agreements must be modifiable in accordance with Fam C §3651. Spousal support clauses must also comply with Fam C §§3591 & 4337. In the settlement, spouses must adhere to their fiduciary duty, which has certain requirements including disclosure. Fam C §§721(b) & 1100(e).

Requirements

  1. Mutual consent
  2. Agreement signed in writing
  3. Fiduciary duties of disclosure and fair dealing
  4. Court approval

Approval of Settlement Agreement

The California family court has the authority to disprove of the divorce settlement. The court may reject the agreement if it is not in the best interests of the child.

Enforcement

An approved settlement agreement is entered by the judge as part of the judgment which must be followed by the parties. Remedies for failure to comply with the agreement depend on whether the agreement was “merged with the judgment.” A merged agreement can be enforced only by judicial remedies (contempt of court) while on that is not may be enforced by traditional contract remedies.

MARRIAGE SETTLEMENT AGREEMENTS – FAQ

What is a marital agreement?

  • A document stating the agreement of the parties presented to the court for approval.

What is the difference between the Marital Agreement and the Judgment?

  • The Judgment is the courts ruling on the proceeding–the ultimate conclusion of the matter. The Marital agreement is usually prepared on plain paper that exists separately from the Judicial Council form of Judgment. The Agreement may be incorporated in the Judgment by duplicating the language of the Agreement in the Judgment, or the Judgment may refer to the Agreement which is then usually attached to the Judgment.

What is the difference between a Marital Agreement and a Stipulated Judgment?

  • A Stipulated Agreement serves the same basic purpose as a Marital Agreement but is usually easier to prepare and often less expensive. However, a Stipulated Judgment does require the respondent to pay a filing fee which could be avoided by a Marital Agreement in a default.

What kind of divorce proceeding will accept a marital agreement?

  • The agreement can be used in default proceedings, uncontested, and contested divorces where the agreement is reached on some but not all issues.

Should I use this free marriage settlement agreement I downloaded on the Internet?

  • Not only should the agreement fit your individual needs but the procedure for executing the agreement also must be followed. Using free legal documents is risky. To cut costs instead, you might consider hiring an attorney for the limited purposes of handling the settlement agreement.
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