DIVORCE AND MARITAL SETTLEMENT AGREEMENTS

DIVORCE AND MARITAL SETTLEMENT AGREEMENTS

We are experts in fast, easy, dissolution marriage.  If you have been married less than five years, have no children and no real property, you can use a joint petition for summary dissolution of marriage.  The beauty of this method is that you only have to pay one filing fee to the clerk.

However, the above method will of course not work for everyone.  We will still get you on the fast track to divorce with the appropriate documents you select:

Choice of Form: Marital Settlement Agreement or Stipulation for Judgment

Once a settlement is reached, it may be drafted either as a marital settlement agreement or as a stipulation for judgment. For complete sample marital settlement agreements.  A marital settlement agreement is a contract, and the parties have all the rights, obligations, and remedies of parties to any contract. A stipulation for judgment, once approved and entered by the court, is enforceable only as a judgment under the Family Code. See Fam C §§290-291. The two forms should not, however, be viewed in isolation from each other. A marital settlement agreement resolves the issues in the dissolution proceeding, provides the basis for the judgment in that proceeding, and is often merged, either partially or entirely, into the judgment, resulting in the substitution (to the extent of the merger) of the judgment for the marital settlement agreement.

In deciding which form to use, the attorney should consider the implications for enforcement, the stage of the proceeding at which agreement is reached, the expense involved with each approach, and possible concerns about privacy. Probably the most important consideration is enforcement. On the one hand, most provisions of a settlement in a marital dissolution action are best enforced if made part of the judgment, thereby allowing enforcement by such means as execution, appointment of a receiver, or contempt (Fam C §290). On the other hand, warranties are enforceable only as contractual provisions and may not be enforced as terms of a judgment. See Marriage of Lane (1985) 165 CA3d 1143, 211 CR 262. Therefore, if the protection afforded by warranties is desired, the need for a marital settlement agreement is indicated. For a fuller discussion of differences in enforceability of marital settlement agreements and judgments.

The stage of the proceeding at which agreement is reached may affect the choice of the form to be used. Generally, when settlement is reached while the parties and attorneys are at the courthouse for a judicially supervised settlement conference or for trial, the agreement is stated on the record, constitutes a stipulation for judgment, and is drafted as such rather than as a marital settlement agreement. At the other end of the spectrum, agreement may be achieved before the petition initiating the action is filed, in which case the appropriate form is the marital settlement agreement. In most negotiated settlements reached outside court for cases in which actions have been filed, the marital settlement agreement is used.

A stipulated judgment is usually faster and easier to prepare than a marital settlement agreement and therefore is less expensive for the client. Note, however, that although there is no filing fee for a marital settlement agreement signed by a defaulted respondent and submitted for incorporation in a proposed judgment (Govt C §70671(b)), a stipulation for judgment probably cannot be filed unless the respondent’s filing fee has been paid. On filing fees generally, see Govt C §§70670-70678.

In some cases, the parties may not want their settlement to be accessible to the public. Without use of a marital settlement agreement, such privacy can be achieved only by a court order sealing the file. Fam C §2024.6. With a marital settlement agreement, however, it is usually possible to keep at least those provisions not required by local rules to be expressly set out in the judgment from becoming part of the court file.

NOTE: In addition to any local rule requirements, provisions for child custody and visitation, and child and spousal support ordinarily must be described in the judgment, in view of the court’s authority to make orders regarding those matters. See Fam C §§3022, 3585, 3590.