Separation Agreements Chapter 12

Proposals Property division Assets Marital residence, Cars, Pets, furnishings Debts Alimony Child custody & visitation Child support Health & life insurance coverage College clause Request for counsel fees In order to identify any issues in contention, each party drafts a proposal (letter) outlining proposed:

Uncontested Divorce If the proposals can result in a compromise, there is no need to resort to litigation parties may enter an agreement, leaving the unresolved issue(s) to be settled in court The agreement is known as a separation agreement

Separation Agreements Premised upon the break-down of the marriage Settles all or most marital issues Presented to the court With petition for divorce At the dissolution hearing Judge must determine it is fair, equitable, enforceable, and entered voluntarily

Merger Although it is a private contract, it can be merged into the court’s final decree of divorce This is usually specified in the agreement itself and/or the petition or complaint Upon merger, the private contract becomes a court order, subject to enforcement with civil contempt proceedings

Advantages Courts have found that negotiated settlements are more readily adhered to than court-ordered decrees (the parties can control the terms, to a great extent) savings of time & money reduction of the adversarial role for each party – they will work cooperatively

Paralegal’s Role Review client file and proposal letters Check state & local rules for required format, Draft clauses reflecting the final, accepted proposals If any discrepancies between the final proposals, the attorney will need to confirm or resolve the conflict. It will be reviewed by the attorney & client together, making sure the client, who will have to live with it, understands all the provisions If explanations are required, that may be an indication that more careful drafting is required Will usually have models or templates available on file or on computer

Basic Structure Heading (title) Preamble Identification of parties Recitals Marriage date & place Names & ages of children Grounds for the dissolution Claim of living separate and apart Pendency of divorce or dissolution action Intent to make this the final disposition of marital matters

Article I & II Irretrievable breakdown No possible reconciliation Separation of the parties Includes “anti-molestation” clause: “free from interference, authority or control, direct or indirect, by the other” Parties surrender expectations in other’s estate

Article III Spousal support or alimony Specifies: The type Frequency of payment Mode of payment Modifiability Termination date & conditions

Article IV Real property Marital home Children remain in it until majority? Sold immediately? One spouse buy out the other’s interest? Sale be postponed & proceeds divided at that time? Off-set against other assets (pension, etc.)? Taxes, repairs, etc., handled prior to liquidation? Other marital real property

Article V Personal property Cars Bank accounts, investments, pension & retirement accounts Furnishings, personal belongings (clothing, etc.), appliances, tools & miscellany Pets Insurance Valuable art, collections, jewelry, antiques

Article VI Child Custody/Visitation Type of custody Sole Joint Split Shared Residential or custodial parent Visitation rights (“reasonable”) or schedule Shared parenting plan or visitation schedule may be attached as an exhibit and incorporated by reference

Article VII Child support, qualified child care expenses & costs of extracurricular activities Amount & duration May be required to attach calculations or worksheet, incorporated into the agreement by reference Additional terms: Beyond 18 College clauses Tuition for private school, special activities Health insurance Tax exemptions

Article VIII & IX Life insurance Health insurance Acts as a surety for spousal or child support Health insurance If available, usually cheaper through an employer May extend COBRA provisions to a spouse Might be covered under alimony section Many state require continuation of children’s coverage usually split “out-of-pocket” or incidental expenses

Article X & XI Taxes Debt & liabilities Split existing marital debt Declare a moratorium on creating any new marital debt Assume liability for any existing separate debt & newly incurred debt Issues may have arisen over debt incurred for “non-marital purposes” during the course of marriage Taxes Filing separately, sharing refunds Determining who will take the exemptions for children Will be contingent upon being current in child support

Article XII & XIII Disclosure Representation of the parties Full discovery (may be through financial affidavits): Income & Expenses Assets & Liabilities Representation of the parties Identify counsel Acknowledge understanding of the agreement Identify responsibility for payment of attorney’s fees, expenses (e.g., appraisals) & court costs

Miscellaneous Clauses Governing law Execution of documents ADR provisions Waiver of rights in the other party’s estate Sole agreement & release of claims Modification Merger with decree

“Page 3 of 8 pages. ___RB ___EB” Signature Provisions Each should sign each copy May require witnesses and/or notarized acknowledgment Dated Identifies attorneys (may sign, as well) Should include blanks for initialing each page in a footer or header: “Page 3 of 8 pages. ___RB ___EB”