A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.
When you initially execute a marital separation agreement you usually do not have to file the separation agreement with the court to be effective.
When and if you begin the divorce proceedings, you will attach the separation agreement to your divorce papers and ask the court to merge, but not incorporate, the agreement into the final judicial decree. If the marital separation agreement is incorporated into the decree, it becomes a court order and is enforceable by the court. If you don’t incorporate the separation agreement into your decree, it simply becomes a contract or agreement between you and your spouse.
If you have no marital property, no joint debts, and no children, you probably don’t need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Settlement Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.
In Georgia, if you have a Marital Settlement Agreement your divorce pleadings will be simpler and less complicated and it will be absolutely clear to the court that you have an uncontested divorce.
When you initially execute your Marital Settlement Agreement you do not have to file the Agreement with the Court to be effective. When you begin the divorce proceedings you will attach the Marital Settlement Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Settlement Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court’s contempt powers. If you don’t incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.
Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case – the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories – (1) Consent Divorces – the parties agree on all major issues; and (2) Default causes – where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Settlement Agreement you make your divorce an uncontested divorce.
A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.
In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.
In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.
In an "equitable distribution state" state, like Georgia, all property acquired during the marriage is "marital property" and all property is divided into marital property (which means it is both yours and your spouse’s) and non-marital property ( which means the property belongs to either you or your spouse alone). I general the following rules apply which categorizing property into "marital" or "non-marital property":
1. If the asset or debt was acquired after the date you were married it is presumed to be a marital asset or debt.
2. A non-marital asset or debt is one that was acquired before the date of your marriage. It is also a non-marital asset if you acquired it through a gift or inheritance. Income from non-marital property is also considered non-marital property.
3. Even if an assets or debt was acquired by your spouse individually, it is considered to be a marital asset or debt, if acquired during the marriage. This includes rights in pension and profit-sharing plans.
4.Real estate that is in both names is considered marital property.
In Georgia, the basic rule is that all marital property is divided equitably. In December 1980, the Georgia Supreme Court decided the case of Stokes v. Stokes 246 GA 765 (1980). The case concerned the property rights of the parties in a divorce action. The court held that the couple’s marital property should be divided euitably between them. Each party can retain any property that he or she owned prior to the marriage. It doesn’t matter in whose name or names the marital property is listed. If the property was acquired after the marriage and is therefore marital property it must be divided equitably.
To divide marital property, the court or a jury must consider:
length of the marriage;
the age, health, occupation, vocational skills, and employability of each party;
the service contributed by each spouse to the family unit;
the amount and sources of income, property, debts, liabilities, and needs of the parties;
debts against the property; whether the division is instead of, or in addition to , alimony;
and the opportunity of each spouse to earn money or acquire property in the future.
Another financial issue involves debts that must be paid. The court may divide the responsibility for the debts, or it may order one or the other party to ay all debts.
SOURCE: Georgia Divorce Online