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What is a marital settlement agreement in a divorce?

A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody, child support, debt division, spousal support and any other relevant issues related to the divorce.

While coming to an agreement without Court intervention is not required, filing a marital settlement agreement does have advantages:

  • The spouses may not have to go to court. The judge will likely honor the written agreement if it covers all material aspects of the divorce;
  • The case will move more quickly though the system; and
  • The parties are able to address all issues that are important to them, as opposed to having the Judge decide.

Marital settlement agreements can be entered into at any time before the Final Judgment of Dissolution of Marriage is entered.

How is child support determined?

Florida has statutory guidelines that determine child support payments. The payment amount is based on each net parent's income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for items such as the following expenses:

  • Child care
  • Health care and health insurance
  • Special educational or other needs
  • Travel-related visitation

Parents can increase or decrease the guideline amount if the following conditions are met:

  1. Both parties agree to the change and enter into a written agreement modifying the amount of support; or
  2. One party is able to prove to the court that a substantial and material change has occurred since the last order entered regarding child support, and it is in the child's best interests to increase or decrease the amount of support.

Keep in mind that the judges presiding over divorce proceedings are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.

What is an uncontested divorce?

An uncontested divorce is one in which both parties agree to the divorce and the terms of the settlement without going to trial. This does not mean there are no arguments or disputes between the spouses. It simply means the spouses reach an agreement as opposed to going to court and having a judge resolve the contested issues.

Uncontested divorces move much faster through the court system and are therefore less expensive. In addition, bypassing the lengthy litigation and trial process tends to reduce hostility and allows the former spouses to move on with their lives more quickly.

Any time the parties are able to reach a written agreement that resolves all issues between them, the case is considered uncontested.

What happens if we reconcile and want to cancel the divorce?

You and your spouse can dismiss the divorce after the initial paperwork has been filed with the Clerk of Court. Simply request a dismissal form from the county clerk anytime before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.  Keep in mind that if you enter into a written agreement before the dismissal occurs, you may still be governed by the agreement.  It is always best to seek legal advice prior to dismissing your case.

How long does it take for a divorce to be final?

There is no waiting period for obtaining a divorce in Florida.  Once the initial divorce petition (along with all required paperwork, including sworn financial affidavits prepared by each party) are filed and served on the other spouse, the parties can settle the case at any point by entering into a written Agreement that resolves all pending issues.  Once the Agreement if filed with the Clerk of Court, you must then obtain a Final Judgment of Dissolution of Marriage.  This can either be done through the mail (in Sarasota and Manatee counties) or by appearing in front of the Judge at a final hearing.  Either way, once the Final Judgment is signed by the Judge and entered into the docket by the Clerk of Court, you are officially divorced.  Usually, you can have your Final Judgment signed and entered within two weeks after you sign your agreement.

Of course, if a divorce cannot be resolved agreeably and requires litigation or a trial, it will likely take much longer to finalize.  The parties will need to exchange discovery and depositions may need to be taken in preparation for a trial, which is a lengthy and expensive process.  A fully litigated trial will likely take an average of one to two years to complete.  The time will largely depend on how cooperative the parties are in complying with deadlines, and may take more or less time than the average stated above.

What happens to retirement funds and 401(k) plans in a divorce?

In Florida, retirement benefits that are earned during the marriage are considered marital property. This means they need to be divided in a divorce. Retirement benefits include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401(k) and 403K plans, etc.  

However, if some of the retirement assets were earned prior to the marriage, there may be a nonmarital component (which remains that party's separate property and is not divided in the divorce). Depending on the value of these assets, it may be wise to hire an independent expert who can value the marital and nonmarital portions of these benefits before you enter into an agreement and prior to presenting this evidence to the Judge at a trial.

Regardless of the length of the marriage, retirement benefits should be discussed and settled in your divorce case.  It is very important to obtain legal advice regarding these issues before any agreements are reached so that you understand your rights regarding these funds.