When you are preparing for your divorce, there are many different factors that you have to juggle. You have the opportunity to negotiate a divorce agreement with your spouse, rather than leaving it up to the court. This agreement will have to address things such as property division, child custody, child support, spousal support, and parent visitation schedules.
However, the judge must approve of your agreement before they will enforce it. In order for a judge to decide that an agreement is satisfactory, it must meet certain requirements of fairness.
What makes a divorce agreement fair?
When judges are evaluating the fairness of the agreement that you negotiated, they will look at things like you and your spouse’s respective income, education and earning capacity.
If one spouse earns far less than the other, and will be able to earn less in the future, it might be necessary for the higher earning spouse to pay spousal support for a time, until the lower earning spouse can become more self-sufficient.
Judges will also look at the bargaining power and experience of both parties. For example, if one spouse hires an experienced attorney to represent them during negotiations, but the other doesn’t, the judge will be more cautious.
If the agreement disproportionally benefits one spouse over the other, the judge will look closely to make sure that both sides had a fair an even chance to negotiate for what they want and need.
What if we can’t come to an agreement?
If negotiations grind to a standstill, and neither of you is able to convince the other to accept your proposals, it may be necessary to leave the divorce decree up to the court.
When it comes to property division, Arizona is a community property state – one of the few in the country. In a community property state, the court first decides which portions of your property are marital property and which parts are separate property.
Marital property is what you gained while married (with a few exceptions), while separate property is what you brought to the marriage (again, with a few exceptions). The court generally divides the marital portion of your property equally, and lets each of you keep your own separate property.
Negotiating your own divorce agreement can be a great way to increase the likelihood that you will get the important items and arrangements that you want, instead of leaving it up to the court. As long as your agreement is objectively fair, it’s likely that the court will adopt and enforce it.