Divorcing couples often think that they should be able to agree about the issues that arise due to their divorce and be done with it. But marriage is a legal relationship, and one that all states take strong positions on. Think about the types of support that federal and state governments provide to families, from nutrition assistance to foster care. Programs like these can be affected when couples split up.
The core issues involved in divorces usually involve the following:
- Property division
- Debt division
- Child custody and visitation
- Child support
- Spousal support (also known as spousal maintenance or alimony).
How these issues are resolved can directly impact not only the couple but the couple’s children. For example, let’s assume that a mother is granted primary physical custody of a couple’s child. However, the mother agreed with the father not to take alimony or child support, and she lacks adequate resources to care for the child on her own. As the result of her agreement with the father, she and the child may have to receive governmental benefits such as Medicaid and nutrition assistance.
The parties to a marriage and divorce are not completely deprived of their ability to agree on core issues, however. They can enter into a settlement agreement when they agree about many issues, such as property and debt division. However, even when they are permitted to agree, they must still obtain court approval before their agreement is valid and enforceable. The issues considered by the judge depend on state law but usually focus on issues such as whether the agreement is reasonable and fair and whether it followed complete disclosure by both parties.
In most states, issues relating to a couple’s children receive heightened court review. For example, agreements about things like child custody, child visitation, and child support are usually reviewed using a “best interest of the child” standard. In other words, the judge will consider whether the parties’ agreement is in the best interest of the child. Here are a few examples of issues that would likely be invalidated by a court applying this standard:
- Agreeing to unsupervised child visitation by a parent who has been found by a court to have abused that child or another in the household; and
- Attempting to “waive” child support in a situation where the parents’ income levels are very different.
Here’s what is usually involved in a court review of a divorcing couple’s agreements: The couple must appear before a judge, who asks questions designed to make sure that they had all relevant information before signing the agreement and that they understand what they signed. When “kid” issues are involved, the judge will usually dive deeper into the factual basis of the agreement. All of the testimony at these hearings is under oath.
If the judge approves the agreement, it is usually incorporated into the final divorce decree in the case. This makes the agreement enforceable.
If you have questions about the facts of your marriage or divorce or about the law governing settlement agreements in your state, contact a lawyer in your state. Divorce is governed by state law, so it’s important that you obtain legal advice from an attorney who is licensed to practice where your divorce proceedings are pending.