Ultimate Guide to Divorce Settlement Agreements: Everything You Need to Know
The divorce agreement is the document that contains the agreements reached by the spouses by mutual agreement on the personal and property aspects of the marriage and that will govern after the divorce .
For this agreement to have full effects after the divorce, it is essential that it be approved judicially.
In this article we are going to explain everything you need to know about the divorce agreement : when it is mandatory, what information it must have, how to write it, how to present it, and much more.
When is the regulatory agreement mandatory?
The divorce regulatory agreement will be mandatory when:
- Divorce is requested by both spouses.
- Divorce is requested by one of the spouses with the consent of the other.
Therefore, in cases of divorce by mutual agreement or consent by both spouses, the drafting of the regulatory agreement is required , which must be presented together with the divorce application .
What happens if the spouses cannot reach an agreement?
In the event that the spouses do not agree on the measures or rules that should govern between them in the future, the divorce will not be by mutual agreement, it will be a contentious divorce .
In this case, it will be the Judge who determines such measures or rules in the divorce decree , therefore there is no divorce agreement between the ex-spouses.
What aspects should the regulatory agreement contain?
The divorce agreement must contain at least (and whenever applicable) the following points:
- Type of guardianship and custody of children . Care of the children may be attributed to only one of the parents ( single-parent custody ) or to both ( shared custody ). In the latter case, it will be shared when they request it in the regulatory agreement or reach said agreement in the procedure.
- Communication and stay regime for the parent who does not have custody.
- Where appropriate, the visitation and communication regime between grandchildren and grandparents , always taking into account their interest.
- Attribution of the use of the home and family trousseau.
- The contribution to the expenses of the marriage and alimony , as well as its updating bases and guarantees if applicable.
- The liquidation of the economic regime of the marriage , when applicable.
- The compensatory pension that one of the spouses must satisfy the other for the economic imbalance caused by the divorce.
In addition, the divorce agreement can include all the agreements that the spouses consider appropriate to regulate the relationship after the divorce, and particularly with regard to property elements, relationship with children, or even custody of pets .
Is judicial approval of the regulatory agreement necessary?
YES , as we have stated previously, for what was agreed in the divorce agreement to take full effect, it must be approved by the Judge .
In the event that the Judge considers that the agreements adopted may be harmful or seriously detrimental to one of the spouses or the children, he or she may deny approval .
In the event that the regulatory agreement is denied, the parties must present a new proposal to the Judge for approval , if applicable. If there is no judicial approval either, it will be the Judge who determines the measures he deems appropriate.
If the inadequate measures affect minor or judicially incapacitated children, the Judge will inform the Public Prosecutor’s Office, which will intervene for the benefit of the minors or incapacitated children.
Once the regulatory agreement is judicially approved, it will have the same executive effectiveness as a judicial resolution . Only the Public Prosecutor’s Office may appeal it in the interest of minor or incapacitated children .
What happens if someone fails to comply with what was agreed in the agreement?
From the approval of the divorce agreement, the agreements may be made effective by means of enforcement .
That is, if the regulatory agreement is judicially approved and is not complied with by any of the parties, an execution process may be initiated to force compliance.
Can what was agreed and approved judicially be modified?
The agreed definitive measures may be modified as many times as advisable due to the new needs of the children or the change in the circumstances of the spouses taken into account when approving them.
The importance of having an expert family lawyer
Divorces are complicated processes and, in many cases, traumatic for some of the parties. Furthermore, a divorce has strong property and family effects (especially if there are children in common) for the former spouses.
Therefore, it is always advisable to have the advice of a lawyer who is truly an expert in family law .
Their extensive experience in cases like yours and greater knowledge of the subject will allow you to find the best possible solution for your interests .