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A divorce settlement agreement outlines how divorcing parties plan to manage issues such as child custody, property, assets, debts, health care, and income tax. That said, each divorce case is unique and answers the question, “what is a divorce settlement agreement?” differently. In complex divorces involving children, a long marriage, and many assets, the agreements can be nuanced. The opposite may hold for short marriages without children and property.

What Is a Divorce Settlement Agreement?

Divorce settlement agreements in Illinois are also called marital settlement agreements (MSAs). Whatever name they go by, the agreements lay out the responsibilities of each party and what happens to children, properties, assets, debts, and the like. Absent glaringly obvious cases of unfairness judges overwhelmingly approve MSAs as they are written.

If one party violates the conditions in a divorce settlement, he or she may face the consequences outlined in the document or return to court. Most divorces involve a divorce settlement agreement, even if they are fiercely contested at first or so uncontested to the point that neither party feels paperwork is necessary. In the latter situation, judges need to see MSAs before they grant a dissolution of marriage.

In situations of hotly contested divorces, most parties eventually settle through talks with lawyers and mediators and sign agreements. Only in a few cases does a divorce case go all the way to trial, with a judge deciding the issues.

In other words, the difference between a contested and an uncontested divorce can come down to whether the divorce has a marital settlement agreement. Many contested divorces eventually turn uncontested as the parties hammer out their differences. However, one that remains contested and goes to trial means that a judge handles the issues based on witnesses, evidence, and lawyer arguments. This happens when the parties cannot agree on solutions, hence the need for a trial.

Elements to Include in a Divorce Settlement Agreement

The parts to include in a divorce settlement agreement vary depending on the particulars of specific cases. For example, when government employees divorce, the consequences can be unexpected, with divorced spouses sometimes qualifying for health and survivor benefits. Many divorce settlement agreements include the following sections:

  • Asset and debt division: Outlines what happens to houses, real estate, cars, bank account balances, retirement funds, business interests or holdings, and even furniture.
  • Parenting plan: Explains how the parties will share decision-making for the children, or if one parent has sole responsibility (in all areas or specific areas). The plan includes details on transportation and holiday schedules.
  • Child support: Details the amount of child support and when it begins and terminates. This area can also cover expenses such as extracurriculars, college tuition and room and board, orthodontics, and health insurance premiums. 
  • Tax details: Discusses which parent claims children as dependents and how upcoming tax filings and any refunds or taxes owed will be handled.
  • Spousal maintenance: Specifies the amount one spouse may pay the other in maintenance and the dates that the support begins and ends. Information on how the parties will review the need for payments should be included.

Many attorneys have checklists for marital settlement agreements. They are extensive and may cover subtle topics that could be an issue in your divorce. They help combat the games people play in divorce so that one spouse cannot unfairly get away with agreeing to X, but sneakily compensate for it by not addressing Y.

Child Support 

Checklist items include the base amount of child support obligation, the number of overnights the child has with each parent as outlined in the parenting plan, and the children’s health insurance costs. The dates the child support begins and terminates are included along with the dates it is payable. The agreement lists the method of payment too.

Add-ons (not covered by the base amount obligation) could include child care, various health needs not covered by insurance, and education costs. This section would outline whether the parent pays these costs directly to a third party, the other parent, or someone else.

Spousal Maintenance 

Here are examples of checklist items for potential inclusion in an MSA maintenance section. Maintenance is another word for alimony or palimony. It is basically financial support that one ex-spouse provides to the other.

First to establish is the type of maintenance: reviewable, fixed-term, indefinite, or reserved. The dates it starts and ends (if applicable) are included, as well as the dates payable and method of payment. If the payer has to take out life insurance, that should be included as well. The agreement should list maintenance termination events, such as six months after college graduation or remarriage.

Children’s College Education 

You and your soon-to-be ex-spouse should review your lawyers’ checklist items pertaining to whether there’s an age limit qualification for a parent or parents to cover college expenses. For example, if the children are older than 24, the parents might prefer to choose not to cover their college costs. The costs could also be limited to just an undergraduate education or for a certain number of years, such as two or four.

This section typically involves a school that the parents use as a standard or benchmark for costs. Yours can be the University of Illinois Chicago, the University of Illinois Champaign, or something else. The school just needs to be something the finances as outlined in the MSA would realistically cover at the time the child goes to college.

This part of the settlement agreement must detail exactly what college expenses the money pays for. Does it cover tuition, room and board, or transportation to and from school? This section should explain what percentage of costs each parent is responsible for and how much the child is responsible for. The split could be, say. 100-0-0, 50-25-25 (with parent A covering 50%, parent B 25%, and the child 25%), or 50-40-10, or whatever ratio is agreed on by the parties.