Legal Agreements

How to Create a Divorce Settlement Agreement That Works For Both Parties?

calendar14 Jun, 2023
timeReading Time: 5 Minutes
Divorce Settlement Agreement

A divorce settlement agreement is a document that deems the   arrangement or consensus agreed upon between both spouses who are seeking uncontested divorces through mutual understanding. However, divorce settlement agreements are often misunderstood as financial or business proceedings between estranged couples. The main aim of signing a divorce settlement agreement is to prevent any issues related to the division of property, assets, and debts. Especially if there is joint ownership by both spouses of the property, assets, and debt, it becomes essential to bring both spouses to a common ground so the division of the above-mentioned issues can be carried out fairly and with clarity. The rights and duties of both spouses towards each other as well as towards their children are stated in the divorce settlement agreement.

Important Issues Which Are Required To Be Mentioned

  • The matter in question is regarding the custody of any child born out of wedlock and its visitation rights.
  • After the divorce is finalized, it is important to determine the terms and conditions of spouse support, alimony, and child support.
  • The question regarding the division of property has to be resolved fairly and clearly.
  • The division of assets, especially if they are owned jointly in the names of the couple, has to be taken into consideration as well.
  • The responsibility to pay the debt is also agreed upon in the divorce settlement agreement between the couple.

Uncontested Divorce Can Be Filed by the Parties under the Following Legislations

  • Section 13B of the Hindu Marriage Act, 1955: (applicable to all Hindus, Jains, and Sikhs) specifically states that the period of separation between the couple must be at least 1 year.
  • Section 28 of the Special Marriage Act, 1954[1]: (applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) it states that the period for the separation of the couple must be more than a year.
  • Section 10 A of the Indian Divorce Act: For Christian couples falls under the ambit of said act, where the period of separation is mandated for two years.

Pre-Requisites That Must Be Kept In Mind before Filing for Divorce through Mutual Consent

Before the commencement of the filing of the divorce petition through mutual consent before the court, it is generally suggested to clarify certain things between the estranged spouses by putting the terms and conditions in writing so that the possible issues cannot be raised in the future. The divorce has been filed mutually by both spouses, so mutually deciding upon resolving matters relating to child custody, child maintenance, joint property, alimony, other joint assets, and many more becomes essential. Since these matters could cause hindrance to the couples, it is usually advised to state and mention all the terms and conditions well in writing, in a clear and uncomplicated way, so it can prevent any dispute from arising in the future.

When The Spouses Enter In Settlement Agreement?

There is no such specific provision that mentions the stage at which the spouses should enter into the divorce settlement agreement. The estranged spouses could enter into the divorce settlement agreement even before the divorce petition is filed in court, or they can file for the same after the finalisation of their divorce. However, it is advised to go for the divorce settlement agreement as soon as it is possible for the spouses because the sooner the matters in question are resolved, the better it is to prevent any unavoidable and unnecessary disagreements and issues.

When The Couple Decides To Enter Into Divorce Settlement Agreement, Before Moving To The Court?

The couple could decide to enter into the divorce settlement agreement even before going to court, but the divorce settlement agreement should always be drafted and executed by or with the proper professional guidance of the legal attorney, legal representative, or mediator. If that divorce settlement agreement is signed by both spouses and executed, it will act as a legally binding contract, and both spouses and parties are under obligation to abide by the signed agreement and follow the terms and conditions of the signed divorce settlement agreement. Once the divorce settlement agreement is signed by both of the spouses or parties, they can further move to the court to file the divorce petition. If the terms and conditions mentioned in the divorce settlement agreement seem just and fair to the presiding officer, then those terms and conditions could be incorporated into the final divorce decree that will be legally binding for both of the spouses or parties. If either spouse or party refuses to agree with any provision or term of agreement, then the presiding officer has the power to make the final call, and thus that decision would be final.

Who Should Be Drafting The Divorce Settlement Agreement?

Although an individual could have a vast knowledge of laws and that individual knows that how a divorce settlement agreement is drafted, one should always seek the advice of a competent lawyer, attorney, or legal representative to draft or at the least, review the self-drafted divorce settlement agreement. It should be made sure that all significant and necessary legal provisions are added to the said divorce settlement agreement. If the individual lacks the expertise, he or she can miss the important provisions, i.e., the serious matters in question that are required to be drafted in the proposed divorce settlement agreement, or he or she could forget to assimilate the specific vocabulary or important words in the agreement. It is very possible that an individual is not updated with the latest state laws or legal provisions. If any individual, who is himself or herself drafting the divorce settlement agreement, fails to assimilate any important provision or specific word, it could risk losing important rights of the parties or estranged spouses, and if either of the parties fails to agree upon any of the provisions in the said agreement, it could end up creating a lot of mess, which will further result in wasting more money. So, it is highly advised to hire a qualified and competent lawyer or attorney to avoid any legal encumbrances.

Modifications in the Terms & Conditions of the Divorce Settlement Agreement

Only under circumstances where both spouses or parties give permission to alter the terms and conditions of the signed divorce settlement agreement is it possible to modify or amend the Divorcee Agreement. Although there are strict laws in terms of property, debt, or any commercial or financial issue, if both spouses or parties agree, they can amend the signed agreement with mutual understanding and consent. The said modified agreement needs to be submitted to court and incorporated into the new court order.

Conclusion

Modifications with respect to the custody of the child or the visitation right can be made only if there are any significant changes in the circumstances and relations between the estranged spouses or parties or if the court thinks fit that the new arrangement can bring some positive outcome or is important and in the best interest of the child. Modification or amendment with respect to the spouse support or alimony provisions depends upon the final order of the court or the original of the Divorce Settlement Agreement. If there is a provision in the signed agreement that states, provisions regarding spouse support or alimony cannot be modified or altered once the final order has been passed, then nothing can be done. So, it is important that all the provisions in the Divorce Settlement Agreements need to be clear and unambiguous.

Read Our Article: Understanding The Legal Requirements For A Divorce Settlement Agreement

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