A marital settlement agreement in Oakbrook Terrace, IL, does not mean a couple is divorced. Only the divorce decree handed down by a judge can finalize a split. This is the huge difference between a marital settlement agreement vs. divorce decree. In many cases, a marital settlement agreement does become part of the decree, but divorces do not necessarily include marital settlement agreements.
What Does a Marital Settlement Agreement Typically Include?
A marital settlement agreement can be as simple or as complicated as a divorce needs it to be. That said, typical divorces (and marital settlement agreements) include areas such as these:
- Parenting time and responsibilities
- Division of property and debt
- Amount and length of spousal maintenance (alimony or spousal support)
- Amount and length of child support
- Ownership of pets
Parenting time and responsibilities, for example, may include details about decision-making power, holiday time, extracurriculars, and perhaps even who has access to the child’s school and medical records, among other things. Division of property and debt can include tax details, artwork, retirement accounts, and jewelry.
Couples have a lot of flexibility in crafting their MSAs. A judge is likely to approve them as long as they are not clearly unfair or unconscionable.
A marital settlement agreement, once signed and part of a divorce decree, should stay intact. There can be exceptions, though. For example, an MSA may be modified in cases of fraud, misleading claims, or life changes such as job loss.
Your lawyer can advise you on how to modify a marital settlement agreement if it becomes necessary. The two general ways to do it are to work collaboratively with your ex to change it and submit the new agreement to the court for approval. The other approach is to get an order from the court. This tactic is most likely to succeed if your circumstances have changed significantly.
What Are the Major Differences Between a Marital Settlement Agreement and a Divorce Decree?
A settlement agreement for divorce is not final until a judge signs it. Your marital settlement agreement could have been signed, but the divorce is not final until a judge reviews it and issues a separate divorce decree, which is a court order. The decree’s terms are legally binding and enforceable.
That is the most significant difference when considering marital settlement agreement vs. divorce decree. Another difference is if your divorce is contested, your marital settlement agreement might address only some issues (or none). In these cases, the divorce might not involve MSAs at all, or may not use ones that cover all the issues.
Similarly, a default decree divorce would not involve a marital settlement agreement. Simple divorces might not, either. These would be situations without property, debts, and children.
A divorce decree is ordered and final, although changes can be made later in a few cases. A signed settlement agreement for divorce is not final, and there is still room and time for changes to be made before a final divorce decree. The question, “What is a divorce settlement?” usually refers to the MSA and not the decree.
In terms of timelines, a marital settlement agreement occurs before the divorce decree. Only a court can issue a divorce decree, and it happens at the end of the separation process. Meanwhile, a couple can be working on a marital settlement agreement for months, perhaps negotiating the points between themselves, or more commonly, with their lawyers or third-party mediators.
A divorce decree contains all the information of the divorce case and court rulings. It often includes the marital settlement agreement with its provisions regarding finances, custody, insurance coverage, and other issues. Your uncontested divorce lawyer can explain the contents that your specific divorce decree is likely to involve.
What happens at a court hearing for an uncontested divorce relates to the marital settlement agreement. The hearing is relatively low-key (as opposed to a divorce trial), straightforward, and quick. Unless the marital settlement agreement has glaring problems, the judge is likely to approve it and issue a divorce decree.
When Should You Get a Lawyer?
You should get a lawyer as early as possible in the divorce process, even before you talk to your spouse about divorce and file any paperwork. A lawyer helps you understand your options and prepare for the split. This person can guide you through an uncontested divorce and smooth out the process of a contested divorce if one is necessary.
Lawyers in Oakbrook Terrace, IL, are helpful in uncontested divorces because they ensure their clients’ interests are considered. People can make rash or ill-thought-out decisions in divorce for any number of reasons. Lawyers act as a safeguard against this happening.
It is rarely easy to negotiate divorce terms for a marital settlement agreement, even in amicable cases. Divorce settlement agreements by their nature require the parties to consider children, various types of financial support, and living arrangements. The parties bring different perspectives, skills, and abilities to the table, and lawyers help their clients’ voices and points be heard.
Why Do Courts Order a Divorce Decree?
Since MSAs contain a lot of information, why do courts issue divorce decrees? They do so mainly for these reasons:
- To outline the expectations stemming from the divorce, so spouses can file motions in the future asking for enforcement if necessary.
- To make it much easier for name changes to occur (often via the subsequent divorce certificate).
- To serve as proof of divorce to change estate planning documents, close a joint bank account, refinance a home, or take other actions (often via the subsequent divorce certificate).
- To get married again (often via the subsequent divorce certificate).
All divorces involve decrees, while some do not involve marital settlement agreements. Decrees make paperwork requirements and processes easier to set up and navigate.
Ask your lawyer or the judge at the final court hearing how to get a copy of your divorce decree. Typically, decrees are mailed to your address or made available for you to pick up. You can also ask the court clerk’s office in the county where the divorce was issued for a copy.
A divorce decree is not the same as a divorce certificate. A divorce certificate does not reveal the personal information a decree does and is usually sufficient to show for a name change, financial account transaction, or marriage license application.
To get this certificate (called a Dissolution of Marriage Verification) in Illinois, go through the Division of Vital Records for uncertified copies. You get certified copies through circuit court clerks.
What Are the Top Considerations for Creating a Fair Marital Settlement Agreement in Oakbrook Terrace, IL?
Ideally, a marital settlement agreement would be fair and carefully considered. If nothing else, this approach reduces the likelihood that one of the parties asks for it to be modified later. Top factors to consider include:
Asset Evaluation
Both parties should thoroughly evaluate and document their assets, including real estate, financial accounts, investments, and personal property. They should also be honest and accurate when communicating about these assets to avoid future disputes and claims of being misleading.
Spousal Maintenance
Determining alimony or spousal support can be complex. Account for factors such as the length of the marriage, income disparity between spouses, earning potential, and the standard of living during the marriage.
Child Custody and Support
Parents should prioritize the best interests of their children and establish a parenting plan reflecting them when they set custody arrangements, visitation schedules, and child support. Variables to keep in mind include the child’s age, health, educational needs, and the ability of both parents to provide a stable and nurturing environment.
Tax Implications
Understanding the tax implications of a marital settlement agreement is vital. Certain financial decisions, such as the division of assets or alimony payments, can have tax consequences for both parties. Your lawyer will probably work with a tax professional to ensure that the agreement accounts for the tax implications and maximizes the financial benefits for you. Your spouse’s lawyer should do the same for him or her.
Modifications and Contingencies
Life is unpredictable, and circumstances may change after the divorce. For example, one party may think that child support or spousal support payments need to change after a job loss or inheritance. The MSA should include provisions for any future modifications and contingencies to more efficiently address potential issues that may arise.
Legal Counsel and Mediation
Experts recommend that each person getting divorced in Oakbrook Terrace, IL, seek legal counsel. An experienced family law attorney can provide invaluable advice and protect your rights. Mediation can also be an alternative dispute resolution method to facilitate open communication and negotiation between both parties.
