Divorce marks the end of a relationship and can be one of the most trying processes for a couple and their families to go through. In saying this, however, many couples are not interested in long and drawn-out court battles.
Often couples wish to enter into settlement agreements dealing with the distribution of their assets and provision for their minor children and ex-spouses. In this article, we unpack some of the main considerations when entering into a divorce settlement agreement.
Maintenance
There are two forms of maintenance namely spousal maintenance and child maintenance. Unlike child maintenance, there is no automatic right to spousal maintenance and a spouse who wants spousal maintenance in absence of an agreement between the parties catering for same, will have to make an application to the court during the divorce proceedings for spousal maintenance.
In saying that however, the parties may agree on an amount between themselves in the case where one of the parties requires spousal maintenance.
Child maintenance is slightly different as every parent has the obligation to care for their child. Child maintenance is usually paid by the parent who does not have primary care of the minor child. Should the parties not agree on the amount, the court will be required to make a determination with due regard to the submissions made by each party, the financial statements and evidence supplied, the number of minor children between the parties as well as any children that may be had outside of the marriage as well as the current employment status of the party meant to be paying maintenance.
Care Of Minor Children
In addition to maintenance factors such as primary care and access need to be catered to.
Primary care does not refer to custody and rather refers to the parent with whom the minor child will be living with. This will have to be included in the settlement agreement in addition to the visitation arrangements with the other parent.
Assets And Liabilities
Should a couple be married in community of property, assets, both moveable and immoveable as well as liabilities would ordinarily be spilt 50/50 although this may be deviated from in a settlement agreement it is important to ensure that the agreement does not show a forfeiture of rights on the part of one of the spouses.
Conclusion
There are a number of rights at play when dealing with a divorce settlement with portions of the agreement requiring additional endorsement, in certain instances, by a family advocate. To ensure that all rights are properly catered for it is important to seek out legal assistance.
Contact an attorney at SchoemanLaw for your Family Law and Contract Law needs!
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