A Divorce Settlement Agreement may be referred to as a Marital Settlement Agreement or Separation Agreement.
This legally binding document outlines the terms and conditions by which a marriage ends (or a legal separation begins) and the spouses begin a life separate from each other.
Such an agreement may be negotiated and finalized between parting spouses, collaborated on by the parties’ divorce lawyers or resolved at mediation. Either way, if it is drafted according to Maine divorce law, the terms and conditions it contains can be enforced by the courts.
Importantly, a properly executed divorce settlement agreement keeps a couple in control of what happens after their marriage ends rather than a judge deciding.
What is included in a divorce settlement agreement in Maine?
A Divorce Settlement Agreement typically follows a loose format so that no key information is omitted. This generally includes the following:
- Child custody and visitation (commonly referred to in Maine as Parental Rights and Responsibilities): With whom any children will live (physical custody or residency), who makes the decisions (legal custody), and parenting plans/visitation schedules for the non-custodial parent. This may also address the consequences of either party’s potential relocation out of the state.
- Child support: The amount, frequency, and method of child support payments, according to Maine state guidelines. This should consider many factors, including whether the child has any special needs or disabilities.
- Division of marital property: How the couple’s assets and debts/liabilities will be divided, including real estate, personal property, bank accounts, investments, retirement accounts, pensions, and anything else considered part of the marital estate (including the mortgage liability).
- Division of personal property: How personal possessions and household items will be divided, as well as how inheritance or gifts are divided (if applicable).
- Spousal support (alimony): The entitlement (or not) of either spouse to support payments—and, if so, the amount, duration, and conditions of these payments. A range of factors must be considered from the length of the marriage to each party’s incomes and earning capacities.
- Insurance and medical expenses: The entitlement to health insurance coverage for the children/ex-spouse, as well as who pays future medical expenses and what happens with any life insurance policies.
- Tax matters: Provisions for how tax deductions/credits will be allocated, who will claim dependents for tax purposes, and how tax refunds/liabilities will be handled.
- Children’s health matters: Clarifying how key healthcare decisions for the children will be made, including medical treatment and emergencies.
- Religious upbringing: If religion is important to a family, the religious upbringing of the children should be addressed.
- Pet custody: In Maine, pets are considered property, but the parties are free to agree on how the ongoing needs of any family pets will be met after the marriage ends.
- Name changes: Provisions for the change of name for either spouse after the divorce.
- Dispute resolution: How any future disputes or modifications will be resolved—for instance, through mediation or arbitration rather than litigation.
- Confidentiality clauses: Sometimes, specific and unique clauses or arrangements are inserted into a divorce settlement agreement between a couple.
These are the basics of what’s included. Many other points and clauses can be included, covering everything from grandparent visitation rights to the division of additional childcare expenses (e.g., daycare) and college education as well as how the parents will communicate and conduct themselves.
How to write a divorce settlement agreement
Before signing anything, it is advisable for each party in a divorce settlement agreement to seek independent legal advice from a qualified divorce attorney.
Drafting a divorce settlement agreement can be a complex legal process. Involving your attorney will help ensure that the agreement complies with the Maine divorce laws and that your rights and interests are protected during the negotiations and drafting of the agreement.
This process also helps to ensure that the language is clear and simple, with nothing important omitted, which can lead to wasted time and higher costs.
Generally, couples will go through the following steps when writing a divorce settlement agreement:
- Consultation with an attorney: It’s best to involve your attorneys early on in a divorce settlement so that you understand your rights and obligations and don’t waste time or raise tensions.
- Identification and listing of assets/debts: List all marital assets/debts including real estate, bank accounts, investments, personal property, loans/mortgages, credit card balances, etc.
- Discussion of child custody and parenting: If joint legal and physical custody is agreed (as is considered preferable in Maine and referred to as joint parental rights and responsibilities), decide where the child(ren) will live and create a parenting plan that details how you will work together to raise the child(ren), including visitation schedules, holidays, and decision-making.
- Negotiation of asset division: The best way to divide assets is usually over calm discussions between partners. Most settlements can be negotiated either that way, through collaboration between lawyers or with mediation.
- Calculation of child support: Calculate the child support obligation based on state guidelines and specify the amount, payment frequency, and modifications for changed circumstances in your divorce settlement agreement.
- Arrangement of spousal support: The entitlement to spousal support (and calculating the amount and duration) is a little more complex than child support as many factors must be considered, including the respective incomes, contributions to the marriage, length of the marriage, etc.
- Consideration of the tax implications: Before reviewing and finalizing the agreement with your lawyers, consider the tax implications of the decisions you make. Tax refunds and liabilities can greatly affect future finances.
- Ensuring all necessary provisions are covered: A thorough agreement will include provisions for matters like healthcare costs, life insurance, the impact of remarriage on either spouse’s rights or obligations, and so on.
- Review and finalization: A divorce attorney should review the agreement for thoroughness, accuracy, and compliance with Maine state laws before it is finalized and signed by both parties.
- Submission to the court: Once the agreement is finalized, it should be submitted to the court for approval as part of the divorce proceedings. This will make the agreement a legally binding document.
Additional tips for writing a divorce settlement agreement
Some important principles apply when drafting divorce settlement agreements—even more reason to consult with an attorney before starting the process.
Firstly, full disclosure is required. Both parties are required to provide complete and accurate financial information and hiding assets or liabilities can have negative legal consequences.
Next, the principles of fairness and equity are essential in divorce settlement agreements, especially when dividing the marital estate.
With any decisions that affect the children from the marriage, such as custody, visitation, and support arrangements, the best interests of the children must come first.
Agreements must also abide by all state laws, which is why an experienced attorney should assist with compliance. This includes the requirement that both parties willingly and voluntarily agree to the terms of the agreement without pressure or coercion.
It’s also important to keep documentation relating to all the decisions you make in the agreement and include plans for future changes and the preferred dispute resolution method if any future issues arise.
What happens if you violate the terms of a divorce settlement agreement?
If one ex-spouse fails to follow the terms of a legally enforceable divorce settlement agreement, the other ex-spouse may have the right to file a motion for contempt.
This may or may not be the best way forward and should be discussed with a qualified divorce lawyer first. Mediation or arbitration or another dispute resolution method may be more appropriate.
However, if a motion for contempt is filed, the judge must assess the circumstances and decide whether the decree’s orders were violated. Penalties for the errant ex-spouse may include a reduction or modification of rights, assessment of attorney fees or even jail time in the most extreme of contemptuous cases.
Can you overturn a divorce settlement agreement?
There are two main instances where a divorce settlement agreement can be overturned:
- If the terms of the agreement no longer reflect your circumstances, such as the loss of a job impacting child support payments, you can apply for a post-judgment modification.
- If you can show that a mistake was made, such as evidence being overlooked or the lack of full disclosure, the validity of the agreement can be reconsidered.
Do you need help during a divorce in Maine?
If you need assistance during a divorce in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.
Do you need help during a separation in Maine?
Separation may or may not end in divorce but understanding some of the pitfalls that affect separating couples should help you use the period wisely and avoid common issues.
If you need assistance during separation in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.