Marital Settlement Agreements are often used in North Carolina as a collaborative tool to resolve all issues to dissolve a marriage. When deciding to divorce, many spouses will seek representation from attorneys to assist with drafting the Marital Settlement Agreement since it provides an easier transition to divorce by bypassing the stressful and costly path of litigation.
What is the Process of Drafting a Marital Settlement Agreement?
If you and your spouse decide to try and amicably dissolve your marriage through a collaborative divorce, you will each need to seek representation by separate attorneys. The attorneys will then work together to help you both reach a fair and equitable Marital Settlement Agreement.
Some couples are hesitant to pursue a Marital Settlement Agreement because they do not believe they will be able to reach an agreement because if they were able to work together then they would not need a divorce. However, by having separate attorneys, you do not need to communicate face-to-face with your spouse and both parties are able to allow their attorneys communicate for then. This allows the parties to resolve areas of contention without causing unnecessary fighting or animosity which is often seen in litigation.
In order to have the best outcome of reaching a Marital Settlement Agreement, both parties need to provide details about their assets, debts and income. During meetings with your attorney, you will be advised as to what information is necessary to provide and which information you may keep separate from the settlement discussions. If you do not provide a full and accurate accounting of all information, this will delay the settlement discussions and the finalization of the divorce.
Once the spouses have agreed upon all terms of the divorce, the Marital Settlement Agreement will be submitted to the court for approval. The court will review all details involved to ensure the Marital Settlement Agreement is fair and does not go against public policy. The court will set a Final Hearing to review all details with the attorneys for both parties and enter a final order granting the divorce.
What are the Benefits of Entering a Marital Settlement Agreement?
There are several benefits of using a Marriage Settlement Agreement to avoid the traditional court process to resolve your divorce issues. These benefits include:
- Allows for honest and open communication between the parties.
- Saves time and money.
- Protects the parties’ privacy by avoiding the court process.
- Allows the parties to dictate how to handle any post-settlement disputes.
- Promotes a harmonious relationship between the parties by avoiding contention which may arise during litigation.
- Allows the parties to look towards the future rather than focus on mistakes in the past.
What Happens If We Cannot Reach an Settlement?
Sometimes the parties will be able to agree on issues and disagree on other issues. An example is if both parties agree on the division of marital assets but do not agree on whether one spouse should receive alimony. Unfortunately, the parties will need to resolve any issues in order to finalize their divorce.
If the spouses are no longer able to collaborate, then they will need to consider pursuing litigation to resolve any outstanding issues. However, the parties must start back at square one if they decide to litigate, including hiring new attorneys. Under North Carolina law, the attorneys who represented the parties in formation of the Marriage Settlement Agreements are unable to continue representing the parties through litigation. The reason behind this is because all communications which take place during the Marriage Settlement Agreement meetings are confidential. In order to prevent the use of the communications in litigation, the attorneys must refuse representation. The parties will then need to each retain new counsel to proceed through the court process.
Once the case is filed with the court, the judge may order the parties mediate in order to resolve their disagreements. This allows the parties an additional opportunity to enter into a Marital Settlement Agreement. Mediation involves a neutral professional, known as a “mediator,” who tries to help the parties reach a settlement by assisting the parties with communicating with one another. However, the mediator is not allowed to provide legal advice to either party and the parties should rely on their attorneys. Any issues that are not resolved at mediation will prevent the parties from creating a Marital Settlement Agreement.
Who Can Benefit from a Marriage Settlement Agreement?
Marriage Settlement Agreements are a great tool to be used by spouses who will need to stay on good terms after the divorce because they will continue to be involved in each other’s lives after the divorce is finalize. This is typically true when the couple has children together and want to co-parent for the best interest of their children, or if the couple owns a business together and decides to continue having ownership in the business despite the divorce.
While Marriage Settlement Agreement is great for people with children, any couple could benefit from pursuing a Marriage Settlement Agreement. This is especially true if the couple prefers to have the final say on the issues of the Marital Settlement Agreement rather than relying on a judge to decide the issues for you. People often find the process helpful with eliminating negativity, animosity, and drawn-out court battles.