Checklist for an Agreed Divorce
This
checklist is informational and not meant as legal advice nor does it create an
attorney-client relationship between you and this firm. We will
only be your attorneys once a written retainer agreement is signed with us. If
you have any specific questions when going through this, please call me to
discuss it. There are many ways that an agreed divorce can be done and this
does not include every way to do it. ALSO, only certain cases are suitable to become an agreed case and analysis must be made into whether a more aggressive position is needed.
Basic Checklist for an Agreed Divorce
Custody Options:
□ Sole Custody – is where
one parent is the residential custodial parent and has the final
decision-making authority with respect to a child
Joint Custody – or “Joint
Parenting” comes out of a “Joint Parenting Agreement” that is negotiated
between the parents. Joint Parenting does not mean equal time with a
child but is shared decision-making between both parents regarding major life decisions
for the children. It requires a high degree of cooperation between both
parents. Joint Parenting Agreements are drafted at an additional cost –
particularly where tailored to your situation.
□
Shared Custody - There are also situations where “shared residential”
custody can be approved by the court. In my experience it requires that the
parties not only desire it but that they: a) live close to one another; b) have a very high degree of cooperation
on the issues with the children and c) both parents have relatively equal
earning ability. Shared custody is very different from Joint Custody (i.e.
Joint Parenting) so ask specifically about this if it is an issue. It can translate into a situation where there is no child
support paid by either party or some sort of offset because one parent makes
more than the other parent.
Visitation Schedule
□ Regular (weekly), extended weekends, holiday,
school breaks, summer vacation
□ Transportation issues, pickup and
drop off times and locations
□ Moving from state: “Removal” is
generally prohibited unless specifically agreed between the parents or ordered by
the court after a hearing.
NOTE:
Parenting arrangements whether sole or joint have much more detail regarding
visitation, rules of handling school, extracurricular, religious and medical
issues with the children – after a consultation, you may request that a sample
Joint Parenting Agreement is sent to you.
Child Support
□ Amount generally
based on yearly gross income from all
sources minus certain tax and other allowable deductions (including
but not limited to union dues, health insurance premiums). You must be able to
tell me what the gross pay (weekly, monthly or yearly) is for the parent paying
support and then what additional (non-tax) deductions are taken from the gross
amount (e.g. health insurance, life insurance, union dues, mandatory
deductions, student loans, etc.) If any of those amounts are not readily known,
then you should discuss this issue with me.
□ Providing W-2’s/tax returns at the time
of the divorce and (if agreed) on a yearly basis thereafter?
Tax Exemptions
□ who gets to claim one or more of the children
□ can
agree to split them/alternate years
Health Insurance
□ who picks up coverage for kids? What is
the cost difference between coverage for just the family, just the employee parent
and then the parent plus children?
□ who has a better or more stable plan?
□ what about un-reimbursed medical
(usually split 50/50)?
□ will other spouse have kids on their insurance as
secondary ins.? (suggested if at no additional/low cost)
□ coverage for each
spouse after divorce. If you were on your spouse’s heath ins. then you will
generally lose it the day of your divorce. You may have rights to get COBRA
coverage.
Life Insurance
□ types of policy (whole, term etc.), face
amounts for each parent policy
□ any policy carry a cash value?
□ children will be placed as
beneficiaries (person(s) to benefit from policy)
□ spouse will be named as trustee?
(person to manage funds for minors)
□ annual proof of coverage required?
Real Estate/Marital Home
□ Possession
issues - Who will move out of the house and when? How will the mortgage
get paid as well as real estate taxes, homeowners insurance, utilities, etc
until the property is sold
□ Separating
Co-ownership – The good news is that separating co-ownership is rather easy
(use of a quit claim deed) however, it is the mortgage that binds you really to
the property. So unless you own your home outright (no mortgage or liens) you
have to determine what works best: assumption of mortgage, refinance, buyout, sale
& division of proceeds, etc.
□ Issues of mortgage interest/real estate
tax deductions in year after divorce
□ Other
real estate? Timeshares, vacation homes, lots,
camp grounds, etc.?
Maintenance/alimony (where applicable)
□ Entitlement to Maintenance - IMPORTANT:
whether one party is entitled to alimony/maintenance can be a complex issue
with a variety of factors to consider such as: length of marriage, age &
health of the spouses, present & future income capacity of each spouse,
education or training of each parent, standard of living maintained in the
marriage, tax implications, time devoted to being a stay-at-home parent, etc.
□ Waiver: each spouse must be extremely
cautious of waiving any right to maintenance and have all the facts necessary
before making a decision – once maintenance is waived, it is forever waived.
□ Types of
Maintenance - there are many options where maintenance is warranted: permanent
or temporary; lump sum payout; money for school/training; modifiable,
reviewable, reservation of the right for a certain time or even an award of a larger portion of property settlement spouse instead
of maintenance
□ Remarriage
issues or if the spouse cohabitates (moves in with) a new partner then
maintenance usually ends
□ Tax Issues – there are generally
specific tax benefits to the spouse paying maintenance and a corresponding tax
liability to the spouse receiving maintenance.
On this and other tax issues, you need to discuss it with an attorney
AND a CPA.
Personal Property
Every
meaningful asset must be addressed in the settlement
including furniture, campers/boats, money
market accounts, bank accounts, jewelry,
tools, 401(k) plans/other retirement benefits, stocks/bonds,
certificates of deposit, motorcycles, electronics, etc.
□ Marital v.
non-marital real estate must be assessed – generally property acquired during
the marriage (but not by inheritance or gift) or placed into joint ownership
during the marriage is marital property. However, each case is different so ask
specifically about property one party may claim is non-marital. Also, there are some rather complex rules in
place if non-marital property contributes to marital property and if marital
property contributes to non-marital property. Sometimes a right of reimbursement
is triggered.
Vehicles
□ awarded to whom?
□ loans? (need balances and account info)
□ refinance if in both names?
□ signing of title docs
Retirement monies: Pension/IRA/401(k)/SEP
NOTE:
pensions are especially hard to place a value upon and to figure out what the
other spouse’s interest is in it (if any). You may choose to have one spouse
receive more in property settlement (cash/assets/home equity) to offset an
interest in a pension but this must be done carefully and with knowledge of the
value of the pension. The reason pension are so difficult is because they are a
future asset (generally only collectible when retirement age hits). Since so
much can happen in between the time of a divorce and retirement (death,
remarriage, company closings or company bankruptcy etc.), these become complex
to properly handle.
□ Beneficiary Check: Always make sure
your beneficiary information is up to date on all retirement accounts before,
during and after a divorce
□ Pension Expert: Pensions are
notoriously difficult to asses in value and ensure your future rights to it are
secured as best as possible. For most pensions and some 401(k) I suggest the
retention of an expert to assist with a proper evaluation or division.
Division of ALL Debts
It is
generally easier for each person to take the debts already in his or her
respective name and/or to pay off all joint debts before the divorce is
completed. Also if one person takes a debt, they should generally get the asset
tied to it (i.e. the person taking the car, should also take responsibility for
the car loan associated with it). Keeping debts or assets in both names after a
divorce is rarely ever a good idea but sometimes unavoidable.
Division of ALL Assets
This should
be done along with the division of debts. A useful tool may be a large ledger
sheet listing all debts (current balances) and all assets (along with the value
of the asset minus any debt with it). The goal may be a strictly even split or
there may be some offset for other issues, like one spouse giving up a right to
alimony/maintenance or a pension. I can
provide a simple asset division tool if needed
NOTE: All
debts and assets need to be discussed with the attorney – even ones you think
are not part of the assets or debts related to or arising during the marriage
College Expenses
This can be
simply reserved for a later time (common with younger children) but you may
also put in some generally agreed provisions (i.e. only state schools will be
paid for by the parents or what do the parents expect the child to contribute
when it comes time, etc.)
Modification and mediation
issues. Can the
property settlement or child custody terms be
modified? and if so then on what grounds? Generally, property divisions
are final but child-related or spousal maintenance issues can be modified.
Maiden Name: Is Wife to
have the right to resume the use of her maiden name? If she ever wants this,
now is the time to request it because it adds no cost to the divorce. If she
wants to change it later then she would have to file a separate case, a
“Petition for Name Change”, pay more in fees, etc.
OTHER
ISSUES:
Financial Documents
Generally Needed in Every Divorce Case: Discovery is the process
by which both parties exchange financial information – this is needed particularly
where spouses kept their information separate through the marriage. Whether by
informal exchange or sworn under oath with written documentation, to complete a
divorce attorneys generally need information on/copies of the last 1-3 years
of:
- Proof income: W-2’s, pay stubs, 1099’s, etc.
- Life insurance policies
- Bank and credit card account statements/info. account numbers, balances, and whose name each is in.
- Information on any other debt or asset held by either party even if you think it is not the other party’s responsibility
- ATTORNEYS: Because of ethical rules we can only answer the questions of the spouse that contacted us first. The other spouse should protect their own interests by either understanding fully what they are agreeing to or hiring their own attorney to review the settlement proposal. The basic idea here is that the more complex the issues, the more each spouse may need their own attorney to be involved so that they each understand what they are doing. Issues like maintenance/alimony, pensions, business interests, numerous debts, obligations on prior marriages, taxes, proper calculation of child support, etc. are not always easily decided and generally require the assistance of an attorney to do it properly.
- MEDIATION OPTION: There is also the option to mediate your issues with a mediator who can assist the two of you in coming up with a fair agreement. If mediation fails to get a result, then things said in the mediation can not be used later against either of you in court.
FINAL WORD
The above information
is merely a starting point on basic issues and to provide some idea of how to
resolve them – IT IS NOT COMPREHENSIVE – that will come if the parties mediate
and/or this firm is retained and only once all issues are decided. There are
many other ways to resolve a divorce other than those listed above and you
should NEVER sign any agreement until it is fully reviewed by your own
attorney. Attorneys can only represent one person’s interest in a divorce so
you should never believe an attorney (other than a mediator) is working for
both of you.
Again, any
questions call me at (815) 954-8175.
Sincerely
Anthony
Andreano
Attorney at
Law