Divorce cases are as unique as the parties involved in them. Some cases can involve years of negotiation, while others may last no longer than five or six months. Ultimately, many divorce cases result in the parties mutually entering into a marital settlement agreement after countless hours of negotiation. This article discusses the main components of an effective and comprehensive marital settlement agreement.
Standard Provisions
All marital settlement agreements will specify the basic information necessary to effectuate a valid divorce, including the length of the marriage, and the reasons for getting a divorce (i.e., irreconcilable differences). Other standard provisions will relate to the parties’ financial disclosures, their intent regarding the tax treatment for certain transactions and events, and the respective rights of each party should they survive the other spouse.
Assets & Liabilities
Because Virginia is an equitable distribution state, the law presumes an equal division of the parties’ marital assets and liabilities. In contrast, separate assets and liabilities are not subject to property division.
Accordingly, a proper marital settlement agreement will contain provisions that specify which assets and liabilities are subject to property division, and the respective percentages each party is entitled to receive. Real property assets should be identified and described explicitly by mailing address and parcel map references. Shared loan obligations should have provisions that address what happens if either party makes a late payment, becomes insolvent, or otherwise defaults on their share of the debt.
Child Custody & Support
In general, Virginia courts determine child custody and support issues based on the child’s best interests. In contrast, marital settlement agreements provide the parties with a unique opportunity to specify which factors they consider pertinent to determining the best interests of their child, to the extent authorized under Virginia law.
Custody orders will specify each parent’s obligations concerning:
- Child care;
- Visitation schedules;
- Nutrition;
- Holiday and birthday access;
- Circumstances that could increase or decrease visitation rights;
- School selection;
- Extracurricular activities;
- Relocation;
- Consent for medical situations; and
- Emergency protocols.
Child support provisions should cover the following issues:
- The circumstances upon which support obligations were determined;
- What circumstances may or may not justify terminating or modifying child support obligations;
- The intended tax treatment for child support payments;
- The use of life insurance or similar financial products as security for child support.
Spousal Support/Alimony
Marital settlement agreements also give divorced couples the chance to specify what circumstances were relevant to determine spousal support. When crafting provisions regarding spousal support, the parties can go into as much – or as little – detail as they deem necessary. However, since the propriety of modifying spousal support depends on proving that there was a material change in circumstances, the parties should identify what circumstances were pertinent to establishing spousal support obligations at the time the agreement was executed.
The parties should also express what conditions may or may not constitute a material change in circumstances for modifying support (e.g., new employment and other instances of wealth accumulation). Spousal support provisions in a marital settlement agreement ought to specify the conditions that justify terminating a party’s spousal support obligation (e.g., death, remarriage, etc.).
Call a Skilled Fairfax Divorce Attorney
Divorces can vary in complexity depending on the facts and conditions of the underlying marriage. Accordingly, you should contact an experienced Fairfax divorce attorney if you are planning on negotiating a divorce settlement. At Malinowski Hubbard, PLLC, we have dedicated years of our practice to fostering the necessary skills for effectively negotiating a fair divorce settlement to ensure you and your family’s best interests are rightly addressed.
Call us at (703) 935-4222 or contact us online to schedule an initial consultation with one of our Fairfax divorce attorneys today.