Marital Settlement Agreement vs. Divorce Decree: What is The Difference?

By staff
Updated Dec 26, 2022


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Even the simplest of divorces involve a lot of paperwork. There’s a specific order of operations to lead you through the paper trail from the process of filing for divorce to the process of being granted a divorce, and each document serves a different purpose.

Here’s what you should know about using a marital settlement agreement compared to a divorce decree.

What Is Custody

Marital Settlement Agreement vs. Divorce Decree: The Main Difference

Your marital settlement agreement doesn’t mean that you’re divorced. Only your divorce decree means that you’re divorced. Your marital settlement agreement will ultimately become your divorce, but it needs to be reviewed by a judge first.

You need your marital settlement agreement in order to file for divorce, but you don’t have to abide by the agreement until after you’ve received your divorce decree. The two documents are related (and have nearly the same function), but your settlement agreement won’t have any meaningful power until you get your divorce decree.

What Is a Marital Settlement Agreement?

A marital settlement agreement is a document that details how you’ve agreed to end your marriage. A marital settlement agreement will show how property is divided and how you’d like to share custody of your children. It can also include information on who keeps the family pets and how you intend to handle a family-run business after a divorce.

It’s a comprehensive post-divorce plan that details what will happen with your shared investments, property, and family once the process is complete.

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How Do You Get a Marital Settlement Agreement?

You get a marital settlement agreement by coming to conclusions that you and your spouse fully agree on. You can create your own marital settlement agreement if you’re able to talk it out. You’ll use that document to file for an uncontested divorce.

Working With a Mediator When You Need Help

If you’re unable to reach an agreement, you can work with a professional called a divorce mediator. Divorce mediators don’t work with the court, and they’re not acting as lawyers.

Mediators are divorce law experts who can listen to your disagreement and make you aware of all possible solutions. They’ll walk you through the process of making compromises, but you’ll have the final say in what makes it to your marital settlement agreement.

Your mediator will provide you with a mediated settlement agreement, which is the same thing as a marital settlement agreement. The document works exactly the same way as it would if you’d make your decisions without the help of a mediator.

If you want to make any changes, you still have time to do so before you officially file for divorce.

Working With a Lawyer When You Need Help

If mediation doesn’t resolve the issue, you and your spouse can hire lawyers. Your lawyers will take your marital settlement agreement into a process called arbitration. Your lawyers will advocate for your best interest.

Arbitrators have the ability to use subpoenas to gather more information relating to your divorce, which is an ability that mediators don’t have.

The lawyers will go back and forth, keeping you in the loop with proposed solutions. Arbitration will stop when both you and your spouse agree to settlement. The process of arbitration usually takes several months but may take years, depending on the level of disagreement and the number of assets you need to divide.

The settlement agreement you get from a lawyer functions as a contract. Parts of the contract may be effective immediately, even before you receive your divorce decree. You likely won’t be able to change anything in the agreement prepared by your lawyers, even if you attempt to do it before you file the document with the court.

If You Can’t Find a Solution

If mediation and arbitration are both unsuccessful, you can’t file for an uncontested divorce. You’ll need to file for a contested divorce, which means that you’re both requesting a divorce without agreeing on how you want the situation settled.

You’ll take the situation to family court, where a judge will enforce compliance with the process. You and your spouse will each need a lawyer, and your lawyer will argue your case in court. Ultimately, the judge decides how your marital settlement agreement will look.

You want to avoid this situation. All divorces can be stressful and have a negative impact on your well-being. Contested divorce amplifies the negative effects of divorce. Contested divorce is very stressful, extremely expensive, and may take years to complete. You should only use contested divorce if there is absolutely no other way.

When Does a Marital Settlement Agreement Become Binding?

You don’t need to abide by a marital settlement agreement until after a judge reviews the document, approves it, and grants you a divorce. Since a marital settlement agreement contains provisions you both agree on, you can voluntarily begin the process of complying with your marital settlement as soon as you file for divorce.

Many people start abiding by their child custody agreement right away. They want their children’s lives to assume new structure, routine, and stability as soon as possible. It’s a good idea to make this choice sooner rather than later.

Can You Change a Marital Settlement Agreement Later On?

You usually can’t change a marital settlement agreement after your divorce has been completed. The judge may hear your request to change issues relating to child custody, child support, and alimony. These are issues that involve a sustained time commitment and a financial commitment, and the details can change with time.

If one parent gets laid off from their job or has to move far away for work, their ability to provide for their children may change. The court wants to know about the situation. They’ll work with you to make any modifications necessary to assure the continued well-being of your child.

They won’t go back and re-decide who gets which piece of property. If it’s already been decided that one partner will keep the house and another partner will keep a specific car, you can’t go back and change that. That’s written in stone the moment you tell the judge you agree to everything in your settlement.

You should never complete a marital settlement agreement unless you’re sure that you’re willing to agree to everything it contains in the long term. You shouldn’t allow anyone to make you feel pressured or coerced into agreeing with things you wouldn’t otherwise agree with.

What Is a Divorce Decree?

A divorce decree is a document that states that you are officially divorced in the eyes of the law.

When you get your divorce decree, you can begin the process of assuming your former name if that’s something you’d like to do. You can also legally identify as divorced and begin the process of transferring assets, and you’re free to marry again if you choose.

How Do You Get a Divorce Decree?

Your divorce decree is supposed to begin with a marital settlement agreement, which occurs during an uncontested divorce. If you file for a contested divorce, the process will be different.

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With an Uncontested Divorce

If you file for an uncontested divorce, you’ll have a quick hearing with a judge. You’ll come into court, sit on the stand, and swear to tell the truth. Next, you’ll be asked easy questions to verify your identity and some basic biographical information.

Your judge will ask you to affirm that you were honest when creating the marital settlement and that you’re satisfied with what your marital settlement agreement says.

If everything seems fair and no one objects, the judge will grant you a final divorce decree. You might get it the same day, but that’s rare. Most judges send them out in the mail.

With a Contested Divorce

During a contested divorce, you’ll get a divorce decree after the judge decides how your marital settlement is going to work. You’ll get the divorce decree based on the settlement that the court chose for you.

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