When a couple decides to divorce by mutual agreement, the document that makes it possible —and that determines what life will look like afterwards— is the divorce settlement agreement. A well-drafted agreement helps prevent future disputes, protects the children and provides legal certainty for both parties. By contrast, a poorly drafted agreement can lead to years of litigation.
In this article, we explain what a divorce settlement agreement should include, which clauses are most often overlooked and what mistakes should be avoided.
If you are looking for the definition, you can consult our legal dictionary entry on the divorce settlement agreement. Here, we focus on the practical content.
Contents
What is a divorce settlement agreement?
A divorce settlement agreement is the written agreement in which spouses set out the terms of their separation or divorce. The judge reviews it and, if it complies with the law and with the child’s best interests, approves it and gives it the force of a court judgment.
It is not a private contract between the parties: it is a court-approved document with full legal and enforceable effect. If one party fails to comply with what has been agreed, the other may seek enforcement through the courts.
Minimum mandatory content in a divorce settlement agreement
The law establishes which matters must necessarily be regulated in the agreement when there are minor children:
1. Child custody
The agreement must specify what type of custody is agreed —sole or shared— and, if it is shared custody, how the alternating arrangement will work: alternate weeks, fortnights, months, etc. The more specific the agreement is, the less room there will be for conflict.
2. Visitation and stay arrangements
If custody is sole custody, the agreement must regulate in detail how the non-custodial parent will maintain contact with the children: weekdays, weekends, Christmas, Easter and summer holidays, as well as special days such as birthdays, Father’s Day or Mother’s Day.
3. Child support
The agreement must specify the monthly amount, payment date, receiving bank account and annual update mechanism, usually linked to the CPI. It is also important to clarify how extraordinary expenses will be shared: medical expenses not covered by public healthcare, extracurricular activities, seasonal clothing, school trips, etc.
4. Use of the family home
The agreement should state who is granted the use of the home, for how long and under what conditions. If there is a mortgage, it is also necessary to specify who will pay it and how the property will be dealt with in the future.
5. Spousal maintenance, if applicable
If one of the spouses will suffer a financial imbalance as a result of the divorce, the agreement must regulate whether spousal maintenance will be paid, its amount, duration and conditions for termination.
6. Compensation for domestic work
If the marriage was governed by the separate property regime, financial compensation may be recognised for the spouse who contributed to family responsibilities through domestic work. This should not be confused with spousal maintenance. Where applicable, the agreement must set out the amount, method of payment and conditions.
What many agreements forget
Updating child support
An agreement that does not include an annual update clause may become outdated within a few years. The most common option is to link it to the CPI, but this must be expressly set out in writing.
Extraordinary expenses
Child support covers the child’s ordinary expenses. But what happens with extraordinary expenses? If the agreement does not define them, they can become a constant source of conflict. Ideally, the agreement should define what is considered an extraordinary expense, who must authorise it and in what proportion each parent will pay it.
The communication protocol between parents
It is not mandatory to include it, but it is highly advisable: how and how often parents will communicate about the children, who informs whom about changes in routine, and how unforeseen events will be managed.
The child’s habitual residence and changes of residence
If it is foreseeable that one of the parents may move to another city or country, the agreement should include a clause regulating how that move would affect custody and visitation arrangements.
The liquidation of the community property regime
The divorce settlement agreement may include the liquidation of the shared marital assets, or postpone it to a later stage. If it is postponed, the agreement should clearly state what will happen to the assets in the meantime, such as who pays the mortgage or who uses the car.
Common mistakes that cause conflict
- Ambiguous wording. “The father will have the child for half of the summer holidays” may seem clear until summer arrives and each parent understands it differently. Agreements should be specific: dates, times, who collects the child and who brings them back.
- Failing to anticipate changes. An agreement designed for a child aged 3 may not work when the child is 12. Including clauses that anticipate how the agreement will adapt to changes in the child’s age and needs can prevent many future disputes.
- Accepting conditions under pressure. Divorce is an emotionally difficult time. Some agreements are signed in a hurry, under pressure or without sufficient legal advice. An agreement signed in poor conditions may be difficult to modify later.
- Ignoring tax implications. The allocation of use of the family home, support payments and the liquidation of marital assets may have tax consequences that should be understood before signing.
| Common mistake | Usual consequence |
|---|---|
| Drafting ambiguous clauses | Interpretation disputes between parents. |
| Not specifying holidays, schedules or handovers | Recurring disagreements on important dates. |
| Not regulating extraordinary expenses | Constant claims and disagreements. |
| Signing without sufficient legal advice | Difficulties modifying the agreement later. |
Can the agreement be modified later?
Yes, through a procedure to modify court-ordered measures. If both parents agree, the process is relatively straightforward. If there is no agreement, it is necessary to go to court.
That is why it is so important to draft the agreement properly from the outset: a solid agreement helps avoid unnecessary modifications.
How Zabalgo Family Lawyers can help you
Drafting a divorce settlement agreement in a divorce is one of the moments when legal advice can make the greatest difference. At Zabalgo Family Lawyers, we have been supporting families in mutual agreement divorce proceedings for more than 25 years, and we know which clauses protect families and which ones tend to cause problems.
Request a consultation with Zabalgo Family Lawyers
Paloma Zabalgo is a lawyer specialising in Family Law and President of the Family and Succession Law Section of the Madrid Bar Association.
