5 Essential Divorce Agreement Provisions You Should Never Overlook

When your divorce involves contested matters or issues that you and your spouse are not able to agree on how to settle, you may need to go to court to let a judge decide the outcome for you. However, if you and your spouse, with the help of your attorneys, are able to negotiate a settlement agreement that resolves all the issues in your divorce, you can avoid a lengthy and expensive trial. In cases like this, it’s possible to submit your final written agreement to the family court judge to approve and incorporate it as part of your Final Divorce Order. Once approved by the Court, however, it can be difficult, if not impossible, to change the provisions after the fact, so to ensure all the important details of your agreement are addressed, here are five essential provisions that should always be included in any divorce agreement.

 

1. Division of Property

 Any final divorce agreement should clearly state how you and your spouse will divide anything designated as marital property or assets that were acquired after the date you got married. This includes items like your home or any other real estate you may own, your bank accounts, retirement accounts, investment accounts, furniture (no matter where it is stored), cars, jewelry, and any other personal belongings of value.

It’s important to be thorough in this section of your agreement so that there is no confusion about who will receive which property after the divorce is finalized. Also, it’s critical to remember that except in some very rare situations, the provisions dividing your assets will be absolutely final and not modifiable later if you forget to include any property or assets. This is one of the reasons we often advise couples to begin building a home inventory as soon as possible when they begin building their life together.

Engaged couples who are preparing to sign a pre-nuptial agreement can attach their home inventory as of the date of the agreement to clearly designate property they have deemed pre-marital. Married couples can refer to their home inventory quickly when consulting with an attorney if their marriage isn’t going well and divorce seems unavoidable to get clear guidance on what a potential property settlement might look like if a divorce action is filed.

 

2. Alimony and/or Child Support

 If either party is entitled to alimony or child support payments from the other party as part of their divorce settlement, those terms should be outlined clearly in the agreement. This includes specifying how much money each party will receive or pay each month (or year) when payments will begin and end (if applicable), and what circumstances may result in an increase or decrease in payments over time (such as job loss or a raise). Your agreement should also clearly define the type of support versus just designating a total dollar amount with no designation of what portion is for child support, alimony, spousal support, or other types of support.

Depending on your jurisdiction and the particular facts of your case, certain kinds of support are modifiable based on certain changes (i.e., child support), while other types of support are more difficult to modify, if at all (i.e., alimony, especially in the case of lump sum alimony). If you don’t specifically list the types of support with the proper label, you could find yourself in a situation where your agreement requires one party to pay the total amount of support indefinitely.

 

3. Parenting Plan for the Minor Children

 A parenting plan should also be included if you and your spouse share any children together. These provisions determine which parent will have primary legal custody of any minor children involved in the divorce and how much parenting time each parent will have with them. This section may also include provisions for holidays (such as who gets the kids for Thanksgiving or Christmas), summer vacations, school breaks, etc., as well as rules for how far away one parent can move from the other without first needing permission from the court to review the parenting plan already in place.

Depending on how amicable you and your spouse are regarding the child-related issues, this section of your Agreement may be extremely detailed or just a general outline of how the two of you will work together. Even in situations where a very detailed parenting plan is necessary, to begin with, the hope is always that the parents will use the proper execution of the parenting plan as a trust-building exercise so that one day when the strong emotions of the divorce have subsided, the parents may be able to put the document in a drawer and simply work amicably together to raise their children.

 

4. Restraining Orders

If there are any specific restraining orders that are necessary on a permanent basis, it’s best to have the language of those restraints included in the Agreement. Depending on your jurisdiction, the family court may have a list of “general” restraints that are put in place for all divorcing couples (i.e., neither party will interfere with the other party’s employment or ability to be employed; neither party will harass the other, or cause the other to be harassed, at their home, place of business, or any other place, etc.). However, these provisions are not the same as obtaining an Order of Protection, as may be necessary in cases of domestic violence.  However, any restraining orders that are included in your agreement will have the power of a court order once approved, so if either party violates the restraints, they could face contempt penalties if brought before the Court for those violations.

 

5. Tax Implications

 Finally, it’s essential that your agreement addresses any relevant tax implications, such as whether the couple will file separate returns in a given year? Did one spouse agree to take responsibility for certain debts, or is there a requirement for the other spouse to pay the tax liability for any marital property that was divided? And if there are children of the marriage, which parent will be allowed to claim the children as dependents, or will that dependency alternate each tax year?

All these details, and any others that specifically apply to your family, should be laid out as clearly as possible so there won’t be any surprises when tax season rolls around each year. Once the Court approves your agreement as a final order, you will also want to share the final document with your CPA or your tax preparer to ensure that your taxes are filed according to the Agreement.

 

Final Thoughts

 When crafting a divorce agreement between two spouses, there are many different factors that need to be taken into consideration before anything can be finalized legally by the family court. These five critical provisions – the division of marital property, alimony and child support, parenting time and legal custody designation, restraining orders, and tax filing status – are just some of the elements that must be included in any comprehensive settlement.

Without these provisions laid out clearly, a couple could find themselves facing additional conflicts down the road. Be sure to consult with an experienced family law attorney before signing anything so that all parties involved understand their rights and obligations under the law. Doing so could help save everyone involved significant time, stress, and money well into the future.

If you and your spouse are considering divorce, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Your divorce and any settlement you create will be subject to your state’s divorce laws. Without discussing your situation with an attorney, your agreement may not be what you want or what is beneficial to your future. If you’re in South Carolina, it’s important to contact an experienced family court attorney like J. Benjamin Stevens today to discuss your specific situation.  Even if you aren’t in South Carolina, Mr. Stevens is happy to offer referrals to a well-qualified attorney located in your state.

If you find yourself facing the prospect of a separation, divorce, alimony, support, or other financial issues, you need the help of an experienced South Carolina family law attorney to guide you through the difficult process. Ben Stevens is a Fellow in the American Academy of Matrimonial Lawyers and is a Board Certified Family Trial Advocate by the National Board of Trial Advocacy. He has the experience to help guide you through the most complicated family law issues. You are invited to contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an appointment.

 

Related Articles by Mr. Stevens:

• The Benefits of Hiring a Board-Certified Family Law Attorney
• 3 Ways to Protect Your Assets in Divorce That Your Spouse Doesn’t Want You to Know About
• How Do I Protect My Business Interests During a Divorce?