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I am drafting a legal separation agreement that will be

Hi! I am drafting a...
Hi! I am drafting a legal separation agreement that will be reviewed by an attorney. Can you please point out some of the most important clauses that needed to be inserted into a separation agreement that are often forgotten?
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6/17/2017
Jessica B
Category: Family Law
Satisfied Customers: 1,190
Experience: Attorney at Donald B. Linsky & Associates, PA
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Hello. My name is ***** ***** I am a licensed attorney. First, what state laws will govern the separation agreement. Thank you.

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Customer reply replied 11 months ago
Hi! New York is the governing state. I am looking for general information too. Thanks.

Thank you. First in the agreement you will want to outline the circumstances. This usually includes where and when the marriage took place. If there are children, and if so, their names and ages. You will also want to list if either party is filing for dissolution. If so, then you will want to list the County and State, and if available the case number ***** the dissolution suit.

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Here is an outline of the major topics generally covered in the agreement:

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Customer reply replied 11 months ago
Okay, can you provide any tips on clauses that might not normally be included in a separation agreement, but are a good idea. they don't have to be state specific. Just searching for information.

Yes. One that many of clients include is a "Contact" Clause. This usually discusses the amount of time or contact the parties are allowed to have with each other.

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It will say things like whether one party is allowed in the house. Since legally you are still married, each party is allowed to have full access to the marital home. You may limit this in the agreement.

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Another topic many of my clients include is regarding pets. This section will discuss ownership of the pets, who will pay for their care, who will pay the vet bills, etc.

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Also, if you and your spouse are both on a car title, you may want to put in the agreement who is allowed to drive the car and when. This is important for liability issues. This is also important in situations where a divorce may become contentious, and one spouse takes the car without the other spouse's knowledge.

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I had a client who woke up one morning and went to drive to work and the car was gone. The husband came and took the car, and since he was on the car title, he had the legal authority to do so.

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The nice part about a Separation Agreement is that they are very flexible. You can put virtually anything into the agreement. Also, if after the execution of the agreement, if something comes up, you are allowed to amend the document to incorporate those changes.

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Most separation agreements contain a clause that allows each spouse to be left alone as if single and unmarried and forbids each spouse from harassing, or interfering with the other.

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You may also want to include a clause regarding filing taxes. This is a very important provision which can save you and your spouse a lot of money in taxes if prepared properly. A good example would be a clause that required the parties to file jointly so long as they are eligible to do so (which is up until the year they are divorced) and to divide the refund or liability for taxes in a specified way, such as 50-50, or 75-25, depending on the incomes of the parties.

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This is also applies to property taxes on any real property you and your spouse owns.

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I have a checklist I am going to provide you, but before I type it in I want to make sure you don't have any questions or need clarification of the information provided. Once you are ready to continue, I will post the checklist.

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I. DATA ACCUMULATION.

A. Personal. 1. Names (including maiden name), Social Security numbers (SSN's). 2. Dates of birth (DOB). 3. Residence and domicile. 4. Children: names, dates of birth, SSN's a. Of this marriage. b. Prior marriages. 5. Date and place of marriage 6. Date of separation 7. [Optional: prior divorces, immigration status, citizenship, prior support orders, antenuptial agreement, work and education histories, special needs/handicaps.]

B. Income. 1. Current gross pay. 2. Mandatory withholdings by employer. 3. Tax withholdings (W-4 form). a. Marital status. b. Number of withholding allowances claimed. 4. Other income or cash receipts. a. Interest/dividends. b. Rent. c. Pensions. d. Child support. e. Spousal support. f. Anything else? 5. Deferred compensation plan contributions? § 401K Plan?

C. Medical Insurance Available. 1. Cost? Waiting period? 2. Coverage available after divorce? Convertible to individual policy? 3. If so, at what cost? 4. Dental plan available? Cost? Waiting period? Orthodontia covered? 5. Mental health coverage?

D. Assets. 1. Insurance policies. a. Name of insurer. b. Policy number. c. Policy owner. d. Type (term, whole life, etc.). e. Cash surrender value. f. Death benefit. g. Loans outstanding? 2. Stocks, bonds, notes. a. Name of certificate/instrument. b. Name of location of certificate/instrument. c. Valuation; date and method used. d. Income tax basis. e. Form of title. 3. Tangible Personalty. a. Automobile(s). (1) Make, model, and year. (2) Fair market value and method of valuation. (3) Outstanding loan balance and monthly payment. b. Furnishings and appliances of significant value. (1) Describe. (2) Value and method of valuation. (3) Outstanding loan balances and monthly payments. c. Miscellaneous items (lawn mower, trailer, canoe, etc.). (1) Describe. (2) Value and method of valuation. (3) Outstanding loan balances and monthly payments. 4. Financial accounts. a. Type. b. Account number. c. Owner. d. Institution (name, address). e. Value. 5. Other financial assets. 6. Real estate. a. Present occupant. b. Popular description. c. Legal description. d. Type of asset. e. Title in whose name? Form? f. Encumbrances? (1) Who is creditor? (2) Type of security. (3) Who is debtor? (4) Amount due? Payment rate? (5) Any balloon payment required? (6) Interest rate? Flexible or fixed? (7) Any unrecorded claims (i.e., amount owed to family)? g. If leased, length of lease - rental received/obligations of owner. 7. Pensions. a. Military – pension, Thrift Savings Plan. b. Civil service. c. Other. (1) Vested? (2) Contributions by employee? (3) Defined benefit or defined contribution?

E. Debts. 1. Who is the creditor? 2. Type of debt (unsecured loan, revolving charge account, mortgage, etc.). 3. Reason for incurring the debt. 4. Encumbered property (if any). 5. Account number. 6. Account balance. 7. Monthly payment. 8. Interest rate. 9. Status of account (current or in arrears). 10. Who is obligated to pay? 11. Have joint credit accounts been converted to only one spouse? 12. Have military check-cashing privileges for the spouse been cancelled in the local command, the commissary, and the exchange system?

II. DRAFTING THE AGREEMENT.

A. Recitals/Boilerplate. 1. Identity of parties and vital statistics. 2. Marital status; is the marriage valid? 3. Fact basis of agreement (i.e., the parties are separated). 4. Intent as to "jointly held" property. 5. Unique factors that have been considered (e.g., re: allocation of debt responsibility, spousal support, child support, etc.). 6. Dissolution proceeding contemplated or filed; court and case number ***** filed. 7. Intent as to incorporation. 8. Parties’ intent re employment. 9. Health of parties. 10. Completeness of agreement; any issues left remaining? 11. Pendente lite orders and prior support agreements or obligations. a. Being superseded? b. All payments current? c. Amount of arrears? 12. Dispute resolution provisions? 13. Statement of consideration. 14. Waiver of estate, role as executor/trix, etc. 15. Non-harassment provision. 16. Method of modification. 17. Effect of reconciliation. 18. Opportunity to consult an attorney; each understands the agreement. 19. Payment of attorney's fees and costs for agreement; for divorce; and if breach?

B. Child Custody and Visitation. 1. Type of custody. a. Joint legal. b. Joint physical. c. Sole custody to one parent. d. Split custody. 2. Sole legal custody. a. Can custodial parent move from the jurisdiction? The country? b. Visitation terms-- (1) With visitation specified. (2) With no visitation specified. 3. Extent of visitation. a. "Reasonable." b. Specified times. c. Notice to custodial parent. d. Mutual agreement? e. Location; overseas? f. Non-use of visitation does not constitute a waiver of future visitation. g. Transportation costs. (1) Fly unaccompanied? (2) Transportation to/from airport. (3) Additional transportation costs custodial parent moves. h. Consequences of denial of visitation. i. Grandparent visitation if noncustodial parent cannot exercise right. 4. Miscellaneous matters. a. Right to telephonic communication. b. Copies of report cards. c. No other surname to be used. d. No remarks disparaging the other parent.

C. Child Support. 1. Amount to be paid. a. Flat sum, or per child basis. b. Periodic adjustments? How often? What basis for a new amount? c. Adjustment for extended periods of visitation? 2. Medical, hospital, dental, orthodontic, and surgical. 3. Who pays any costs not reimbursed by insurance? 4. Obligation to keep child as designated beneficiary on life insurance policy? 5. Duration of payment: a. Define emancipation? b. 23 if in college? 6. Who claims child as dependent for income tax? Promise to cooperate and execute necessary IRS forms; remedy for failure to do so. Conditioned on current support payments? Hold harmless from increased taxes due to loss of dependency exemption and tax credit?

D. Spousal Support. 1. Waiver? 2. Purpose of support. 3. Periodic or lump sum. 4. Duration. 5. Taxable to recipient?

E. Asset Division. 1. Preliminary. a. Identify; describe the assets. b. Classify: marital/community, or separate? c. Evaluate. d. Allocate between the parties. 2. Confirmation of separate property or transfer from one to the other. 3. Continued co-ownership as true "joint tenancy with right of survivorship?" Tenants-in-common? 5. Disposition of personal effects. 6. Specific clauses for military pension division, SBP coverage (if applicable), other pension division (or waiver, or reservation by court over pension division) 7. Sale of real property 8. Possession pending sale 7. Delayed sale. a. Responsibility for mortgage. b. Payment of rental value? c. Responsibility for maintenance, upkeep, and income in interim. d. Division of proceeds upon sale? e. Reservation of jurisdiction by court over the asset and division thereof if delayed disposition.

F. Debts. 1. Identity of separate debts. 2. Identity of marital debts. 3. Disposition of debts. (Note: This is not binding on creditor). 4. Defend, indemnify and hold harmless. 5. Credits for payments after separation. 6. Warranty re future debts for which other may be responsible.

G. Taxes. 1. Consider state as well as federal. 2. Filing status for current year. 3. Filing status for future years (up to date of divorce). 4. Division of refund for current (and future?) years. 5. Allocation of additional taxes, penalties, and interest for: a. prior years. b. current year.

H. Warranties. 1. Full property and debt disclosure. 2. No known factors affecting value. 3. After-discovered marital property. 4. Effect of invalidity of any one clause.

I. Judicial Action and Miscellaneous. 1. Applicable law. 2. Covenant to carry contract through to execution: sign documents, deeds, assignments. 3. Failure to sign or deliver document required by contract (or judgment); application to court. 4. Provision for the return of dependent ID cards. 5. Effective date of agreement. 6. Signature of parties and notarization. 7. Names of attorneys. 8. Exhibits attached? 9. Has client been advised to: ***** ***** his/her will to exclude the spouse as a beneficiary? b. Revoke powers of attorney -- with spouse as agent? c. Designate new beneficiaries for insurance policies? d. Designate new beneficiaries for military benefits? e. Designate new beneficiaries for retirement benefits [401(k) plan, IRA, etc.]?

Jessica B
Category: Family Law
Satisfied Customers: 1,190
Experience: Attorney at Donald B. Linsky & Associates, PA
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