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Marital Settlement & Parenting Agreements

Mediating to Obtain a Separation Agreements, Property Settlement Agreements, Marital Settlement Agreements and Parenting Agreements

The contract that contains all of the terms relating to separation, alimony, child custody and child support (if applicable), use or sale of a home, division of bank accounts, investment accounts, furniture, vehicles, pets, retirement accounts, businesses, life insurance, allocation of debts, filing taxes, among other topics is called different names by different people. Most commonly, people refer to such contracts as “Separation Agreements” or “Property Settlement Agreements” and “Marital Settlement Agreements”. Nancy Caplan, Esquire uses the terms Marital Settlement Agreement.

There are few other contracts which so comprehensively determine your rights and obligations about almost everything that affects your lives. Coming to settlement, whether by the parties themselves, or in mediation, or through collaborative law negotiations, or by attorney-led negotiations is all to the purpose of reaching a consensus in this contract.

In mediation, the parties negotiate all of these topics with the guidance of their neutral and private mediator. It is likely that either or both party has never experienced separation or divorce. Therefore during the course of the mediated negotiations parties are hearing about options and proposals relating to these topics for the first time. Each party must have the opportunity to digest the information or proposals in order to make final choices with confidence. Therefore, the settlement negotiations between the parties are confidential- that means if you cannot agree, the negotiations will not be part of the court case. It also means that the negotiations in mediation are not binding.

The negotiations are closed and become binding only after 1.) the agreement draft is written; and 2.) each party has had an independent attorney review of the drafted settlement agreement; and 3.) agreed revisions are made; and 4.) the contract is put into final format; and finally 5.) the parties both sign and date the contract in front of a notary public. It is at the moment of signing completed by both parties that the draft settlement becomes a binding and enforceable contract.

The Marital Settlement Agreement is then a binding and enforceable contract absent fraud, irregularity or (legal) mistake; however it is not usually filed with the Court until the parties file for the divorce with the Court. It is upon filing for divorce that the parties (usually) ask the Court to incorporate the terms of the Marital Settlement Agreement into the Court’s Judgment of Absolute Divorce without merger of those terms. This means that after the divorce, you still have a binding and enforceable contract, and you also have a court ordering the terms of the Marital Settlement Agreement.

A Parenting Agreement is either 1.) a part of the Marital Settlement Agreement (it may be negotiated separately, but more often it is part of the Marital Settlement Agreement; or 2.) Where parties have never married but share Children it is stand-alone contract. It may or may not also be filed with the Court. It is a document that contains all of the terms of Child Custody, Child Support and other related Child issues.

Whether part of a Maryland Parenting Agreement or Maryland Marital Settlement Agreement, agreements relating to Child Custody or Child Support pursuant to the Maryland Child Support Guidelines are modifiable by the Court if there is an important change of circumstances that require modification to further the Child’s best interests. However one of the parties would have to request that a provision be modified. There is no Separation Agreement police monitoring whether the terms of the Marital Settlement Agreement or Parenting Agreement are being followed. It is up to the parties to seek enforcement or change (where permitted) relating to the Child Custody or Child Support issues. The remaining contractual provisions are usually not modifiable and cannot be changed except where there are unusual circumstances like fraud.

Nancy Caplan Esquire at Maryland Divorce Mediation & Legal Services can help you reach your settlement and will craft a neutral draft of your agreement for each party’s independent attorney review. Making your agreed choices part of a contract is the way to establishing the rights and obligations of each party. Start your mediation today in order to organize your future and move forward. Bend, don’t break. Mediate.