If you are drafting a Property Settlement Agreement for divorce or having one drafted for you, consider including the following topics in your agreement:
1. House/other real estate: Be sure you indicate who will get to keep the house, when the deed gets transferred into their name, who is going to prepare the deed, who will pay any fees associated with the recording and transferring of the deed. In addition, be sure to indicate when the mortgage, home equity loan or any other debts against the house will be refinanced into the name of the spouse keeping the house and what happens if they cannot refinance. Will the house be sold? If so, who keeps the proceeds? Indicate what percentage of the proceeds the other spouse is getting in the refinance or sale or the set price. If the house has to be sold, who is going to pay for repairs? Who will maintain the expense of the home until it sells? You may have a host of other issues if the house sells such as the selling price, terms, etc.
2. Retirement Accounts/IRAs/Pensions: If you have retirement accounts, be sure to cover the percentage of the account the other party is receiving, if any, or the set amount in dollars and how it is to be calculated. Will you need a QDRO to provide for a tax fee transfer and if so, who will pay the cost to have it prepared? Certified by the Court? Is there a beneficiary or survivor benefit? If so, is the spouse going to be named or given a percentage and is there a value to this?
3. Savings Accounts, checking accounts: Have you closed all joint accounts? Have all accounts been fully disclosed? Who is going to keep what funds? Any credits due to the other?
4. Business: If one of the parties has a business, has it be valued? Who is paying for for the valuation? If it is not valued, do you agree on the worth or understand you could have had it appraised?
5. Other Assets: Have all assets been addressed? There could be rewards dollars, airline mileage rewards, timeshares, stocks, bonds, investment accounts, stock options, etc. Be sure you cover every possible asset and who is keeping what asset.
6. Taxes: If taxes are being filed jointly, how will the refund or money owed be divided? Who is going to claim the children in future years? If any taxes are owed as a result of any distribution of assets, who is going to pay the taxes?
7. Debts: What debts of the marriage exist whether in joint or individual names, and who is paying what? What happens if one party files bankruptcy on a joint debt?
8. Alimony, APL, Spousal Support: Is it being paid and if so for how long and how much and to whom? Under what circumstances may it terminate early? Is it being waived?
9.Full Disclosure: Has there been a full and final disclosure of all marital assets? What happens if an asset is discovered after the agreement?
10. Future Breach of an Agreement: What happens in the future if one party breaches the terms of the agreement? Will attorney fees and costs be paid by the other side? Will you go to arbitration?
11. Custody and Child Support: Both custody and child support do not need to be in your property settlement agreement in order to get a divorce as they are separate remedies. Any provision in your agreement regarding support or custody will be modifiable. Since schools require a copy of your custody order, it really should be set forth in a separate document.
These are by no means all the points you should cover in your agreement, but these are essential. You may want to consult with an attorney to assist you in this process.
For additional information see:http://www.ulmerlaw.com/Family-Law-Divorce/Division-of-Marital-Property.shtml