Marital Settlement Agreements and Separation Agreements
Our Illinois Marital Settlement Agreement lawyers and Separation Settlement Agreement attorneys creatively deal with the complex issues that arise as we tailor settlements for our clients.
During a divorce or legal separation, a settlement agreement dictates each party’s legal and financial obligations to the other. They often involve substantial negotiation and may involve court approval, depending on the nature of the couple’s separation.
What is the Difference Between a Marital Settlement and a Separation Settlement?
Though similar, there is a significant difference between Marital Settlements and Separation Settlement Agreements. The latter involves two individuals who maintain separate residences but remain legally married, while the former involves a complete dissolution of marriage.
Separation Agreements, like Marital Settlement Agreements, may be presented to a court for approval and incorporated into a Judgment of Legal Separation, which creates a binding court-decreed legal separation. The provisions of a Judgment of Legal Separation, which may be similar to those in a Marital Settlement Agreement, are as enforceable as the provisions of a Judgment of Dissolution of Marriage. The only difference is that the parties technically remain married. However, unlike Marital Settlement Agreements, Separation Agreements may be private documents between the parties without court approval. If one of the parties violates the agreement, the other party must go to court and sue for specific performance or breach of contract.
Marital Settlement Agreements, as well as Separation Agreements, may be discussed, negotiated and completed before or after formal actions are filed in court. After a case is filed, a Marital Settlement Agreement is often reached well before a contested trial but after resolving uncertainties or conflicts in preliminary court proceedings. Some Marital Settlement Agreements and legal Separation Agreements are settled literally on the courthouse steps just before the trial is to begin or even during a trial.
Regardless of how the process begins, a Marital Settlement Agreement or Separation Agreement must be carefully drafted and understood by both parties. Both Marital Settlement Agreements and formal Separation Agreements deal with important topics including custody, parenting time, visitation, support, education, and healthcare costs for the children. Also addressed is maintenance (alimony) for a party—whether it should be included at all, and if so, how much, for how long, and whether it is to be modifiable. Other considerations center around property division, such as real estate, personal property, bank accounts, investment accounts, securities, investments in private equity, valuable collections, patents, copyrights, vehicles, aircraft, watercraft, and all other things of value owned by the parties.
How Attorneys Facilitate the Process
With Marital Settlements, in particular, the Domestic Relations Court must approve the agreement as “not unconscionable.” In other words, the agreement must be reasonable and fair to both parties. If the agreement includes provisions for child custody and support, this also requires formal review. A marriage does not legally dissolve until the marriage settlement agreement receives court approval.
A qualified Marital Settlement Agreement lawyer can ensure your Illinois divorce progresses smoothly. Schiller DuCanto & Fleck’s Chicago family law attorneys spend a major portion of their time negotiating, carefully drafting, and analyzing these agreements.