What is a Marital Settlement Agreement?
A marital settlement agreement contains the conditions of a divorce, as agreed upon by both spouses. Both parties should read the agreement carefully, discuss it with their respective attorneys, and sign it if they accept the terms.
Once this step is completed, it will be presented to a family court judge, who will review it before finalizing the divorce.
What to Expect from a Marital Settlement Agreement?
You and your spouse will need to come to terms with various issues. Your attorney will assist you in advocating for your needs and negotiating with your spouse and their attorney.
To this end, your lawyer will likely ask you the following questions so they can learn about your goals for the divorce:
How Do You Want Your Assets and Debts Distributed?
If you answer that you want to keep most of the assets and your spouse can have the debt, you should know that New Mexico is a community property state.
That means a judge will try to divide marital assets fairly. In many cases, they will aim for a 50/50 split, but some deviation is possible as long as the allocation is still approximately equal..
Does that mean you have no control over what happens to your marital assets? No, not necessarily.
Creating your own marital settlement agreement gives you, and your spouse more say in what happens rather than leaving all the decisions up to the judge.
While you can’t choose to keep all the assets, you can list any assets you especially want to keep and those you’re willing to let your spouse have. For instance, maybe you want to keep the boat you purchased together, but you’re fine with your spouse taking the ATV.
You will need a complete list of all assets and debts to begin discussions, but you can group together the assets you’re most interested in protecting. Your lawyer will negotiate with this in mind.
Like assets, debts obtained during the marriage are usually considered marital debts and divided evenly among spouses.
In a few situations, your lawyer may be able to argue that some debt is solely your spouse’s if it did not benefit you or the family in any way, but most of the time, you will have to share the debt.
However, sometimes spouses may agree that one partner will pay more debt in exchange for more assets.
Will Either Spouse Seek Alimony or Spousal Support?
If one spouse financially supported the other or made significantly more money, the judge may consider ordering them to pay alimony or spousal support.
If you’re seeking support, you and your lawyer should talk about how much you want, whether you prefer monthly payments or a lump sum, and how long payments should continue if you want regular installments.
Sometimes, you may ask your spouse to pay a significant amount or for a limited time until you can be self-sufficient. For example, you might ask them to pay you to finish your degree and provide support until you graduate.
If your partner will likely want support, talk with your lawyer about what might be a fair amount. You could also discuss ways to negotiate a lower amount, such as allowing your spouse to have more assets in exchange for less alimony.
Alternatively, you might prefer to keep more assets and pay more in spousal support.
How Will Child Custody and Support Be Shared?
New Mexico family courts emphasize doing what’s best for the child. In most cases, this means shared custody, where both parents play an active role in the child’s life.
Many parents choose a 50/50 model where they will switch off time with the child fairly evenly.
They may do one week or two weeks at a time or agree on specific times of year that the child will be with one parent or the other – such as summer break from school, winter holiday breaks, time that one parent is often out of town for work, and so on.
But 50/50 custody isn’t ideal for every situation. If one spouse often travels for work or isn’t available, an even split may be unrealistic, resulting in frequent changes and upheavals to the child’s schedule.
New Mexico courts generally seek predictability and consistency in a child’s life, so in these situations, it may make more sense for one parent to have custody most of the time while the other parent sees the child on weekends and some holidays.
In other cases, parents choose to have the youth spend more time with one parent so they can stay in their current school district. It’s important to think about what you want and what will be best for your child.
Timesharing does not affect your ability to make joint decisions about important choices in your child’s life, like education or healthcare. In most situations, the court favors both parents making these decisions together.
Sometimes spouses will decide that one parent will make certain decisions if this makes more sense for the situation.
Once you’ve worked out how much time the child will spend with each parent, child support can be calculated based on these percentages.
You and your spouse should also discuss if you want to make provisions for who will handle specific expenses – for instance, it might be less expensive to keep the child on one parent’s health insurance, or one parent might agree to pay for all school fees.
You can also agree on who will contribute what to college savings accounts, etc.
Can You Modify a Marital Settlement Agreement Later?
In most cases, no. Financial agreements about assets and debts can’t be changed unless both parties agree and sign a modification agreement.
There are a few exceptions – in some cases, you can ask a judge to reopen the settlement if you signed it because your spouse fraudulently misrepresented financial information. You would need some evidence of fraud.
You can argue that you signed the agreement under duress, but this is also very hard to prove and not often a valid option.
Child support can be modified if a significant change has occurred in one party’s financial situation.
For example, if you used to make six figures a year but cannot work anymore due to a disability, it would be unfair to expect you to pay the same amount of child support.
Similarly, if your former spouse got a large raise or an investment paid off in a major way, it would be reasonable to expect them to pay a little more in child support.
Child custody agreements can be changed if both parents agree, or you can petition the court to change the agreement if you believe it’s in your child’s best interests.
In most cases, the court will not completely shut a parent out of a child’s life, but they may modify the time the child spends with each parent. Call your lawyer immediately if you think your child is experiencing abuse or neglect in the other parent’s home.
They can seek a temporary custody order and then ask the court to modify your custody agreement in the long term.
What If You and Your Spouse Can’t Agree on the Settlement?
In most cases, spouses eventually agree with the help of their attorneys and a mediator (a neutral third party).
If you and your spouse simply can’t agree on some issues, the court may order you to spend a certain amount of time negotiating in mediation, and if that is unsuccessful, the court will decide for you.
This doesn’t always produce a result that makes both parties happy, so this is a strong incentive to work on coming to your own agreement. However, if this fails, the court will step in.
Get Help with your Marital Settlement Agreement
Please contact New Mexico Financial & Family Law for a consultation about your marital settlement agreement and other aspects of your divorce.
Call (505) 503-1637, and we will do our best to answer your questions and advocate for your rights and goals during your marriage dissolution.