Agreements
Summary in Divorce

Getting divorced makes for agreements -- meetings of the mind by which a couple resolve their differences concerning asset and liability division, alimony, health and life insurance, legal and physical custody, child support, visitation, medical insurance and expenses and college. In these agreements -- which are also called separation agreements, property settlement agreements or marital agreements -- divorcing couples divide the goods they accumulated during the marriage and establish obligations to one another that endure after they part ways.

Agreements take shape verbally, during negotiations conducted by the parties, their lawyers, mediators, an even an arbitrator, but they are always put in writing, and they are legally enforceable as contracts.

At other points in a relationship, however, couples frequently formalize understandings in writing. These agreements are antenuptial (or prenuptial), which are signed before marriage, or postnuptial, which are signed after marriage but before divorce.

Courts recognize that these agreements are negotiated under circumstances that make them different from commercial contracts. Like all contracts, however, marital agreements must be negotiated by people with a capacity, who make an offer and an acceptance. An agreement may not be so one-sided as to be unconscionable.

In general, a property settlement agreement is like cement: when it is done, it is done. After a divorce is final, it is too late for a change of mind.

What Samuel Goldwyn said about oral agreements ("An oral agreement is not worth the paper itís printed on") applies to marital agreements. In general, courts do not recognize an oral or verbal agreement between divorcing spouses, particularly when there is no evidence other than the testimony of one spouse.

When a couple cannot reach agreement together, their case goes to trial, and the courtís decision and judgment substitutes for an agreement.

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#259: If you want to avoid court, work with your spouse to reach and agreement on all your issues. Most divorces do end in settlement, unfortunately sometimes, it takes the reality of a trial to make the spouses realize that the judge's ruling would be too much of a surprise to bare.
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