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Tips for negotiating an enforceable separation agreement for your divorce

On Behalf of | Apr 1, 2022 | Divorce

It is a common misconception that the divorce process always involves a judge dividing up your property and imposing support obligations on you against your will. In reality, if you have a relatively civil and cordial relationship with your spouse, a separation agreement can be negotiated by your attorney and presented to the court in lieu of litigation.

This can be mutually beneficial, since it gives you and your spouse the opportunity to negotiate for what you each want the most, and creates the possibility of compromising and finding creative solutions to conflict outside of the court.

Here’s what you need to know in order to craft an agreement that an Arkansas family law court would likely adopt and enforce.

Make sure it covers the correct subjects

Arkansas law gives divorce courts discretion to enforce privately negotiated separation agreements inasmuch as they cover certain topics. For example, an enforceable agreement will decide things such as whether one you will be paying alimony to the other, how much alimony payments will be and how long they will last. Your agreement can also cover the division of marital assets and debts.

There are some things that a court likely will not enforce, even if both spouses are in agreement. For example, divorce courts reserve the responsibility of determining child custody arrangements and support according to what is in the best interest of the child. This means that, if a court thinks that your proposed custody arrangement isn’t what is best for the child, the court will make its own determination.

Make sure it is reasonable and fair

Courts will not enforce a separation agreement that they deem to be overly oppressive or unfair to one party. If they determine that an agreement is too one-sided, they may look into the circumstances of the negotiation, to see if there was any coercion or unfair practice – such as if one party was represented by an attorney during negotiations but the other was not.

When negotiating, it’s a good idea to take into account your earning capacity and that of your spouse. If you were the higher earner or have more education and work opportunities, then you may need to make more concessions to your spouse in order for a court to decide that your agreement is adequately balanced.

If you are able, successfully negotiating a separation agreement with your spouse is a great way to take your divorce into your own hands and ensure the best possible outcome, rather than leaving your fate up to a judge.