Before you can legally end your marriage, you and your spouse must first resolve several issues. Spouses who absolutely cannot agree on one or more issues might have to bring the matter before the court for the judge to decide. However, the goal of many divorcing spouses is to reach a settlement agreement out of court. This can save you time, money, and stress.
You always want to have an experienced California divorce lawyer negotiating and drafting your settlement agreement. This is because the court must approve your settlement, and you do not want to risk any delays in the process if you must return to the negotiating table. If you want to have the best chance of avoiding court intervention, you also should address all relevant issues in your agreement. The following are some matters that you should include in your settlement, as they apply to your situation.
Community Property Division
All divorcing spouses must decide how to divide their community property. Community property includes the property and assets that you acquired during your marriage. Even if an asset is only in one person’s name or income is earned by one person, it is likely considered to be community property that needs to be divided. Some exceptions include inheritances or gifts in one name only that was kept separate from the community property, or property deemed separate in a prenuptial agreement.
When dividing community property, you want to distribute it in a manner that is fair and as close as possible to an equal net share for each of you. This does not mean you must split everything down the middle, as this can be impossible with property such as houses or businesses. You also might not want to sell the asset and divide the proceeds, and it might be best for one spouse to keep a large asset, and the other to get a larger portion of the rest of the property.
When you list all of your property and its relative value, it is easier to both decide how to distribute it in accordance with California law, as well as improve your chances of having the court approve this part of your settlement agreement.
Spousal support will not be an issue in every divorce. If both spouses have similar income and access to property and assets, it will not make sense for one spouse to provide financial support to the other. However, if there is a disparity in earnings between the spouses, such as when one spouse has been staying home with the children for a few years while the other works, it might be appropriate for the non-working spouse to receive support while they gain the experience and training necessary to rejoin the workforce.
You should discuss whether spousal support should be at issue in your divorce case. If so, it is certainly something you want to try to work out with your spouse’s attorney. While spousal support can be a highly contentious matter in many cases, it is possible for some spouses to agree on the issue, and if you do, it should certainly be addressed in your settlement agreement.
If you and your spouse share one or more children, you will need to address two child-related issues: child custody and child support.
There are two aspects to child custody arrangements in California. One of physical custody, which addresses how much time your child will physically spend staying with each parent. Many parents agree to share joint custody of their child, which means their child lives with both parents. If you can agree to joint custody, your task will be to determine the specific schedule you will follow for sharing physical custody of your child.
If one parent fights for sole custody (which means the child will only visit the other parent), it can be more difficult to agree. Usually, the other parent will not simply give up joint custody rights. However, if one parent plans to move away without the child, or has other reasons for not wanting joint custody, it might be possible to write sole custody into your settlement agreement.
In addition to physical custody, your settlement agreement should address the matter of legal custody. This involves making important decisions for your child’s life, including:
- Child care
- School and education
- Religious affiliations and activities
- Therapy and psychiatric or psychological health counseling
- Medical care and providers (though not in emergency situations)
- Sports, camps, and extracurricular activities
- Travel and vacation
Most parents will share joint legal custody, and you might be able to agree on this matter with your spouse. If so, you can resolve this issue in your settlement agreement. You will also need to include a detailed parenting plan that addresses specific aspects of your custody arrangement. This includes schedules, transportation, how you will communicate about the children, holidays and vacations, and much more. The right attorney can guide you through the parenting plan process, so you have the best chances of gaining the court’s approval.
Parents generally have the right to spend time with their child, and they also have the responsibility to provide financial support for their child. Both parents are expected to contribute to ensure the child’s basic needs are met. In some cases, in order to ensure fair contributions of each parent, one parent will be ordered to pay child support to the other.
Often, it is obvious to divorcing parents that one parent should receive support. It might also be acceptable for parents to agree that neither of them pays or receives child support. If this is your situation, you can address child support in your settlement agreement and submit it for court review. Divorce lawyers will know how to ensure your child support agreement is in accordance with California law, as well as how to present your agreement to the court for the best chances of approval.
An attorney will be able to identify whether there are additional issues your settlement agreement should address.