1. Separation Agreements
Chapter 12

2. 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:

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. “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”