What Exactly is a Divorce Settlement Agreement?

A woman going through a divorce sent this email to me: I was so excited that my soon-to-be-ex finally emailed me and said that he agreed to accept my settlement offer. We finally had a divorce settlement agreement! But the next day he emailed me back and said he changed his mind. He DIDN’T agree. Can he do that?

I wish I could say that once your spouse said, “Yes. I agree” to a divorce settlement agreement, you actually HAD a firm agreement. The truth is, however, you didn’t.

In Illinois, until you (or your lawyers) have written your divorce settlement agreement into a formal legal document AND both you and your spouse sign that document AND a judge enters that agreement in court in your divorce, the “agreement” you made isn’t set in stone, and it can be changed.

While that may seem wrong or unfair – especially if you WANT your spouse’s email agreement to be binding – that’s generally the way it is. What’s positive is that once you understand that principle, you can work with it.

The Anatomy of a Divorce Settlement Agreement

When two people are going through a divorce, they usually focus on two things:

1. Making the best financial and custody deal they can; and
2. Getting their spouse to agree to that deal.

While those two steps are undeniably important, they’re just the first two steps in getting a legally binding agreement. There are three more steps that follow those two. Those steps are:

3. Write the agreement you made into a formal legal document,
4. Have both you and your spouse sign the legal agreement, and
5. Get that agreement entered in court.

Until all five steps are completed, the divorce settlement agreement you thought you made could potentially still change.

That means that just getting your spouse to agree to something isn’t enough. Yet, that’s exactly the point where most people stop.

They believe they have a divorce settlement agreement, so they celebrate. Then, when their “agreement” falls apart, or their spouse changes his/her mind, they get upset.

An Agreement Isn’t Always an Agreement

Most divorce “agreements” fall apart in steps 3 or 4. That’s because there’s often a HUGE difference in what you think your agreement is, what your spouse thinks your agreement is, and what that agreement ultimately looks like on paper.

Here’s a simple example.

Let’s say that you and your spouse agree that you can keep the marital house after the divorce and that you will refinance the mortgage and take your spouse’s name off it. That seems simple enough, right?

But what if you assumed that you would pay your spouse his/her share of the equity in the home when you refinance, but your spouse thinks s/he should be paid by getting a bigger share of the retirement accounts now? Do you still have an agreement?

What if you’re not sure you can refinance today and you want to give yourself two years to refinance … but your spouse wants you to refinance now. Do you have an agreement?

Or what if you and your spouse both agree that you can have two years to refinance, but you want to divide the equity in the home as it exists today, and your spouse wants to divide the equity as of the date you refinance.  Do you have an agreement?

The problem with “coming to an agreement” is that, unless you agree on all the details that accompany that agreement, you might not really have an agreement at all.

What’s more, the details of what you THINK you’re agreeing to might look very different than the agreement that the lawyers put on paper. It’s not unusual for the written divorce settlement agreement to go back and forth between the lawyers for weeks (or months) until every little detail is ironed out.

What’s worse is that while your written agreement is going back and forth between the lawyers more times than a ping pong ball, your spouse can still change his/her mind about whether s/he wants to make that agreement in the first place!

So what do you do if getting your spouse to stick to an agreement is harder than pinning jello to the wall?

Dealing With a Spouse Who Can’t Make Up His/Her Mind

Few things are more infuriating and frustrating than dealing with a spouse who changes his/her mind often. Every time you think you’re making progress, the deal ends up changing. So you get exactly nowhere.

Without question, some spouses use this kind of tactic to wear you down or make you crazy. But most people back out of deals either because they’re not sure about what they really want, or they’re afraid they just made a bad deal. So they change their mind.

While a certain amount of back-and-forth is normal, if your spouse constantly changes his/her mind about everything, coming to a divorce settlement agreement that sticks can be challenging.

What can you do if this is your situation?

You might want to talk to your attorney about holding a settlement conference with both you, your spouse, and your attorneys in the same room at the same time. With technology being what it is these days, you may be able to write your agreement while you and your spouse are in the room. Then you can sign the document right there before you leave.

While that still doesn’t guarantee that your spouse won’t change his/her mind before you get a judge to sign off on the document, at least you’re farther along.

More typically, however, the way that you can get a really reluctant spouse to sign off on a settlement is by actually going to trial.

In most cases, before you start your trial, the judge will hold one last pretrial conference to try to settle your case. When the prospect of having to go to trial is immediate and certain, even people who couldn’t make up their mind about anything before often find a way to settle.

Obviously, waiting to settle until you’re almost on trial isn’t optimal. By that time you will have paid your lawyer a lot of money to prepare for trial. But, at least by settling then you save yourself from the uncertainty of not knowing (and not being able to control!) what a judge does if you try your case to the end.

Karen Covy is a Divorce Coach, Lawyer, Speaker and Author.  She provides divorce and decision coaching to busy professionals and business owners who want to make clear, confident decisions during one of the toughest yet most sensitive times in their life. Karen also helps them navigate through the divorce process with less conflict, expense, and damage to themselves and their children.

Karen is the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. She is also the creator of the online divorce program, The Divorce Road Map 2.0. You can connect with Karen on Facebook, Twitter, LinkedIn and YouTube, as well as on her website at karencovy.com.

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