What is a Divorce or Separation Agreement?
Although the Divorce or Separation Agreement is one document, it comprises various sections or exhibits. Each of these exhibits is governed by different rules and laws to consider before making a decision. The court will ask for your separation agreement, but many people, including divorce lawyers and mediation lawyers, will refer to this document as a divorce agreement as you are getting divorced. If you have a pre-nuptial or post-nuptial agreement, you will want to review this document before making your agreement.
Can I create a Divorce or Separation Agreement in divorce mediation?
Divorce mediation can be a great place to discuss and create an agreement you decide. Mediation allows the both of you to work together to create an agreement. You get to decide instead of the court. Of course, the court does need to approve your agreement.
What is in the Divorce Agreement?
The agreement will contain information about where both parties live, when you separated, where and when you were married and the date of birth of all the children of the marriage.
There is also language in the document that will state that you have received any discovery requested. The discovery is documents on any questions you may have about the finances of your spouse. The court will want to know that both of you are apprised of the finances of the other and that you are making this agreement knowingly and it is your free and voluntary act.
What exhibits will be in the agreement?
The exhibits will depend on your particular circumstance, but for the most part the exhibits will discuss alimony, your children, division of assets, division of debt, taxes, life insurance and any other exhibits that may be relevant to your agreement. The rules and law for each of the exhibits will vary, so it is important that you understand the rules and laws for each exhibit before making a decision.
What goes into an alimony exhibit and do I have to ask or offer alimony?
Alimony is the payment of monies from one party to another based on need and the ability to pay. Alimony may consider the length of the marriage, the health of the parties and may be for a certain amount of time, open to be considered in the future or waived and not to be considered. Whether this is relevant or not to your particular matter, this section still must be included in the agreement.
What goes into the exhibit regarding the children?
If you have children, the court will want to know where the children will be living and when both parents will have time to spend with the children. The time each parent spends with the children is called a parenting plan. Creating a parenting plan helps the children and the parents know when they will have time to spend with each other. Other considerations for the children will include: health insurance, child support, children’s activities, whether the children have passports and how will you pay for college or higher education for the marital children.
A child support worksheet will need to be included if the parties have children who are emancipated. The worksheet is a state formula. If the parties agree to something else than the state formula, you will need to include a Findings of Determination Worksheet, which the court must approve. This is a separate document and not part of the agreement, but the amount of child support is listed in the agreement.
What goes into the exhibit for debt listed on your financial statement?
Whatever debt you have will be listed on your financial statement. The court will want to know who is responsible for paying your debt and whether or not this is your debt or marital debt. If you do have marital debt, the court will want to know how will that debt be paid.
What goes into the exhibit for taxes?
The court will want to know how you recently filed taxes and how you will file taxes going forward. If you have filed taxes jointly the prior year, the court will want to know if you owe any taxes and if so, how have you arranged to pay this debt.
There are also deductions that may be claimed and you will need to decide who might take a mortgage interest deduction or a child tax credit.
What goes into the exhibit for medical insurance?
Medical, dental and vision insurance may be offered where you work. You may also have a FSA or HSA account to help pay for medical expenses. If parties have separate insurance policies and one spouse has insurance for the children, they will need to decide going forward who will provide insurance for the marital children and how this will this be paid. If only one spouse has insurance, the insuring spouse will need to find out if the divorced spouse can remain on the medical insurance policy post-divorce. Parties may decide to review medical insurance in the future if they have different policies.
What goes into the exhibit for insurance?
Life insurance listing the spouse as a trustee beneficiary for the children can help a family if one parent unfortunately dies and leaves the remaining spouse to care for the children. The life insurance will also help the remaining spouse if he or she was receiving child support. Life insurance can also provide income if one spouse is receiving alimony.
How will we divide our assets?
Other than the children, this is the biggest part of your agreement. What assets will remain with each spouse? The assets will include the marital home, other real property, bank accounts, pensions, retirement accounts, investment portfolios and other assets either party may own. Parties will list all their assets on their financial statement and consider and decide which party will keep what asset.
There are other considerations such as a family business or other businesses that may be considered.
The Divorce or Separation Agreement is an important document that will contain the terms and division of your divorce. It is important that you understand your rights and responsibilities under this agreement before signing, and that you find a divorce lawyer or mediation lawyer you can trust to guide you through the process.
