A Divorce Settlement Agreement’s 3 Most Important Factors

A Divorce Settlement Agreement is a written document that highlights everything that you and your soon-to-be-ex-spouse have agreed upon.  The agreement lays out the conditions of the divorce and needs to cover 3 main topics: care and contact, child and spousal maintenance and the division of property.  A Divorce Settlement Agreement will ultimately be made an order of Court, so it is crucial that an experienced Divorce Attorney assists you in drafting this agreement before it goes to court.

1. Care and Contact (Custody and Visitation) in a Divorce Settlement Agreement

It is recommended that the care and contact arrangements are detailed in the Divorce Settlement Agreement no matter how amicable the divorce may be. There are various forms of Care (Custody) arrangements available.  An experienced Divorce Attorney will assist you in understanding the difference between the various options, such as primary care or shared care.

Contact or Visitation Rights and Responsibilities also need to be highlighted. In most cases, both the biological mother and biological father have full parental rights and responsibilities in respect of their child.  

Biological parents have the responsibility to care for their child, to maintain contact with their child, and to contribute towards the maintenance of their child.  Biological parents have the right of contact or visitation with their child, which needs to be clearly outlined in the Divorce Settlement Agreement to remain fair and to avoid disputes.  Issues such as detailed holiday schedules, birthdays, special holidays etcetera need to be clearly stated.

2. Child and Spousal Maintenance (Alimony) in a Divorce Settlement Agreement

A principle of marriage is the reciprocal duty of support by the parties according to their means.  Spousal maintenance (also known as alimony) is money that is paid from one spouse to another to help support them during or after the dissolution of marriage.  It is usually the male spouse that is expected to financially support the female spouse, but this is not always the case as women have become financially more stable. 

Spousal maintenance can become payable in one of two ways. The parties may come to an agreement in a Divorce Settlement Agreement, which will later be made an order of Court upon divorce.  With the second option, in the case where the parties cannot come to an agreement, the court will make an order after the parties have presented all relevant evidence to the court.    

Child maintenance refers to the money that a child is entitled to in order to have their clothing, housing, education, food and medical needs met.  It is the responsibility of both parents to provide for their child’s needs, but in practice, it is usually the primary care parent that receives the child maintenance monthly to ensure that the child’s needs are catered for. 

An experienced Divorce Attorney will assist you in ensuring that your child and spousal maintenance is fair so that you don’t suffer financially after the Divorce Settlement Agreement is made an order of Court. 

3. Division of Property / Assets in a Divorce Settlement Agreement

The last main function of the Divorce Settlement Agreement is to determine how property/assets will be divided between spouses. This division will depend on the way in which the parties are married i.e. In Community of Property or Out of Community of Property and with or without the Accrual System.  However, property/assets can be divided in any way that the couple agrees on, which needs to be outlined in the Divorce Settlement Agreement.

Decisions will need to be made regarding whether or not certain property, such as a house, will need to be sold, and if so whether or not the profits will be divided.   In certain cases, the parties may agree that one spouse will buy the house from the other. If the house is kept by one spouse, then it is that spouse’s responsibility to change the bond into his or her name after receiving the divorce decree.  It is advisable to get the input of an experienced Divorce Attorney, when it comes to the division of property/assets.    

Conclusion

Your Divorce Attorney at Van Heerdens Attorneys will ensure that you get the most out of your divorce by assisting you with negotiating and drafting your Divorce Settlement Agreement.

Do you have a matter which you would like to discuss?

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