Can You Write Your Own Settlement Agreement?
- 07 01, 2020
- Irwin & Irwin
While the word “divorce often conjures images of spouses screaming at each other in the courtroom, the reality is that most divorce cases are resolved out of court. This is because the spouses are able to reach a settlement agreement that addresses all of the relevant issues in their specific case. If you and your spouse can agree on all of the terms of your divorce, you can present your settlement agreement to the court. If the court finds your agreement is fair and in line with California law, the judge can simply approve the agreement and incorporate those terms into your final divorce judgment.
Having a settlement agreement saves you time, stress, and money since you do not have to engage in litigation in court. Some people wonder if they can save even more by money by writing their own settlement agreement and not seeking the help of a divorce attorney at all. While there is no legal requirement that you have a lawyer draft your settlement agreement, it is certainly a good idea to do so.
Possible Errors When Writing Your Own Settlement
Your divorce settlement agreement might seem straightforward, especially if you do not have children or a significant amount of property and assets. The agreement will be more complicated if you have a family, own a home, or due to other factors, but you still might think you can handle writing the agreement.
You should always use caution when making this decision, however, as many people inadvertently make errors that can impact their case and its outcome. Some common errors might include:
- Not addressing all relevant property, assets, or debts
- Having terms that are not in line with California family laws
- Not properly representing your agreement in writing
Any of these can affect both your divorce and your future.
Not addressing all relevant property, assets, or debts
When it comes to property division in a California divorce, you must first identify all community property (and debts) and then decide how to distribute them. Many people do not realize just how much community property needs to be divided, as it can include:
- Your home
- Rental properties
- Bank account balances
- Retirement accounts
- Personal property, including clothing, housewares, furniture, electronics, and more
- Debts, including credit cards, loans, personal loans, student loans, and more
Some couples fail to realize they need to divide up everything they own together as equally as possible. This includes jewelry, appliances, tools, and other items they might not consider. It is important to account for the value of all your property – real and personal – and ensure that you divide your property in accordance with California’s community property laws. If you fail to address certain property, you could end up with much less than you deserve, and your spouse could be in a much more favorable position post-divorce.
In addition, many people might not realize the fairest manner to divide up debt obligations. For example, just because a credit card is in your name does not mean that it is “your” debt. If you incurred balances during your marriage, it will likely be marital debt, and your spouse should be responsible for half of the balance. You do not want to end up saddled with debts while your ex is relatively payment-free, and this is a common risk when you do not have the guidance of a divorce attorney.
Having terms that are not in line with California family laws
California has specific laws regarding issues in a divorce. If the court receives your settlement agreement and finds that it is not in line with California law, the judge can reject the settlement. This can cause significant delays in the process. Some issues the court might have with your settlement include:
- Property division terms do not divide all community property equally
- Child custody terms do not reflect the best interests of the child
- Child support amounts are not in line with state formulas
- Spousal support terms will leave one spouse unable to support themselves or requires unfair payments from a spouse
Any of the above – among other issues – can lead a judge to reject your settlement agreement, and you cannot have your divorce finalized until you have sufficiently resolved all matters. If your settlement agreement is not accepted, you should contact a divorce lawyer right away for assistance. However, it will save you time, money, and energy if you have the guidance of the right lawyer from the start instead of waiting until your settlement was rejected by the court.
Not properly representing your agreement in writing
When you read a legal contract, it can include legal language that is difficult for non-lawyers to fully understand. While such language might seem superfluous, certain terms are important to fully express the agreement that you reached with your spouse. While you might verbally agree on certain terms, clearly expressing those terms in writing is another story.
It is best to have a legal professional who regularly writes settlement agreements handling your agreement. A lawyer will know what type of language is needed to ensure that the terms of your agreement are properly expressed.
Speak with a Divorce Attorney
Even if you and your spouse agree on settlement terms from the start, it is still always wise to consult with a divorce attorney. Too many people do not fully understand their rights under the law, and it is possible to lose out on assets, property, and support that they deserve. Once an outcome is in place, it can be difficult to change it, so you want to ensure that all settlement negotiations are conducted with full knowledge of your rights.
Even if you wrote your own settlement agreement, it is important to have a lawyer review it before you submit it to the court. An attorney can identify possible issues that you can address before filing it, which can save resources and avoid delays in your divorce process. While you can write a settlement on your own, it is not recommended that you do so.