Settlement agreement for a legal separation in California

A settlement agreement for a legal separation in California is the topic of this blog post.

A settlement agreement for a legal separation in California is an excellent way to ensure that any uncontested legal separation in California will be entered without either party actually having to appear in Court.

A settlement agreement for a legal separation in California is very similar to a marital settlement agreement in that it is used by the spouses in a legal separation to resolve all contested disputes and claims.

A detailed settlement agreement for a legal separation in California will usually cover many issues such as division of property and debts, reimbursement claims and tax issues, child custody and visitation, child and spousal support, attorney fees and costs, and in some cases, certain waivers and indemnification agreements between the spouses.

In order to comply with California law the parties are required to exchange the "preliminary" and "final" "declarations of disclosure" specified in Family Code § 2100 et seq.  An exchange of prescribed "preliminary" disclosure declarations is mandatory and nonwaivable. Family Code § 2104.

And, unless excused by the court for good cause, "final" declarations of disclosure must be exchanged before or at the time the parties enter into any legal separation agreement in California that resolves property or support issues. Family Code § 2105(a). If the mandatory declarations of disclosure are not exchanged the legal separation agreement is invalid and will not be accepted by the Court.

Because each case is unique with its own facts and circumstances when the issues involved include custody, visitation, support, property division, debt division, or other similar issues, a settlement agreement for a legal separation in California should be carefully drafted to meet the needs of the particular parties involved.

A settlement agreement for a legal separation in California that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court.

Limitations for a settlement agreement for a legal separation in California.

However there are some limitations which must be kept in mind when drafting a settlement agreement for a legal separation in California, such as the fact that a settlement agreement for a legal separation cannot abridge the parents' mutual statutory child support obligation, or impinge on the court's jurisdiction to award child support. This means that that the settlement agreement for a legal separation cannot contain a provision in which one party "waives" child support. The issue of child support can be "reserved" which means that the Court retains jurisdiction to order child support in the future, but it can never be waived.

Another limitation that must be noted is that a settlement agreement for a legal separation cannot limit a court's exercise of custody jurisdiction over the minor children of the marriage.  Another factor to be considered is the fact that there is no prohibition against a waiver of post-separation spousal support.  If the spouses separate by mutual agreement, neither owes the other a duty of support unless they otherwise agree, see Family Code § 4302; and any right to support after a judgment of legal separation, exists, if at all, only under the terms of the judgment.  Therefore a waiver of support in a settlement agreement for a legal separation in California that is knowingly, intelligently, and voluntarily entered into will be enforced according to its terms. Note that a waiver of spousal support for a "long-term" marriage of ten years or more must be clear and unequivocal.

The confidential relationship between the spouses carries with it corresponding fiduciary obligations in intraspousal transactions and in the management and control of the community estate, see Family Code §§ 721(b), 1100(e).  All "confidential relationship"/fiduciary duties (including broad disclosure obligations) continue after separation until the community estate is distributed and support and professional fee issues are resolved. See Family Code §§ 2102, 1100(e).

Subject to limited statutory exceptions, a settlement agreement for a legal separation in California (like all spousal contracts) must comply with general principles of contract law. The contract law defenses include (among other things) mistake, failure of consideration, unlawfulness of the contract and prejudice to the public interest.

Other general contract concepts which may be relevant in drafting or enforcing a settlement agreement for a legal separation in California include voluntary and knowing consent which is given free of fraud, undue influence, duress, menace, or mistake.

Sample settlement agreement for a legal separation in California for sale.

Attorneys or parties in the State of California who wish to view a portion of a 20 page settlement agreement for a legal separation in California available in Word format sold by the author can see below.

Sample Legal Separation Agreement for California by Stan Burman on Scribd

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.