MARITAL SETTLEMENT AGREEMENT CHECKLIST　

FACTUAL RECITALS

Identity of parties and minor children

Statistical facts of marriage

Dissolution proceeding contemplated or filed

Each party's employment (or, in the case of an unemployed party, employment background, skills, etc.)

Each party's current earnings

Each party's age

Health of parties

Finality of agreement, or issues left unresolved

PROPERTY DISPOSITIONS

Identity, value and disposition of community and quasi-community property

Identity, value and disposition of noncommunity property joint tenancy and tenancy in common interests

Confirmation of each spouse's separate property interests

REA waivers (waiver of survivorship benefit rights in other spouse's ERISA pension)

Waiver of rights in deceased spouse's estate

Sale of property (and/or deferred sale re, e.g., "family home award")

Warranty: disclosure of property

Warranty: value of property

After-discovered property

Disposition of furnishings and personal effects

Allocation of debt responsibility; "hold harmless" clauses

REIMBURSEMENT CLAIMS

SP contributions to the "acquisition" of CP

Payments on debts

Property improvement payments

Contributions to education and training　

CUSTODY AND VISITATION

Sole custody (legal and/or physical)

Joint custody (legal and/or physical)

Other custody arrangement: shared custody; split custody

Reasonable visitation; or defined visitation

Removal of child from jurisdiction– State, County of Monterey

Child's surname

CHILD SUPPORT

Guideline minimum child support requirements

Spouses' recognition of guideline limitations where agreement is for less than the mandatory minimum

"Family home award" as component of child support

Payment schedule": weekly, monthly, or other; when payments under agreement shall commence

Duration of child support (effect of emancipation or adulthood)

Special support considerations: health insurance, medical and dental payments; special educational needs, etc.

Right to claim dependency exemption; waiver of exemption by custodial parent

Agreement to support adult children

SPOUSAL SUPPORT

Amount of support

Payment schedule: weekly, monthly, or other; when payments under agreement to commence

Combined spousal and child support option ("family support")

Payment of debts as payment of support

Satisfaction of state and federal tax requirements for deductibility to payor

Modifiability of spousal support

Duration of support; reservation of jurisdiction

Waiver of spousal support

Pendente lite support

FEES AND COSTS

Attorneys'/mediator’s fees and costs of litigation

Experts' fees

Costs

TAX PROVISIONS

Tax returns (separate or joint returns during the separation period?)

Tax refunds and deficiencies; indemnification provisions

Allocation of dependency exemption

Designation of spousal support as nonincludible, nondeductible for federal tax purposes

GENERAL PROVISIONS

Effect of reconciliation

Effect of invalidity

Law applicable

Mutual releases

Modification, revocation or termination of agreement

Costs of enforcement; waiver of costs of enforcement

Execution of instruments

Execution formalities (notary, recordation, etc.)

Effective date of agreement

Independent legal representation (or acknowledgment of voluntary and knowing refusal to obtain independent legal advice

Persons bound

Parties

Counsel

General Instructions for Dissolution Cases. 

Joint Tenancy Assets. If you hold property in joint tenancy with your spouse, your spouse will automatically succeed to your interest in that property if you die first. You may wish to convert such joint tenancy assets into tenancy in common ownership (upon proper notice and procedures). This will destroy the automatic right to succeed to your interest in that property on your death, and will ensure that the property passes under your will or to those entitled by law if you died without a will. You should also be aware that there may be state and federal tax consequences involved in determining whether or not to change an asset from joint tenancy to tenancy in common.

Estate Planning. If you have a will or trust, it may not be affected by any action in the dissolution of your marriage. Further, any such will or trust will not necessarily be affected by any judgment entered by the court in this matter. You may wish to consider making a new will, or at least revoking the current will.

Creditors. You should be aware that you will continue to be liable to third persons from whom you and your spouse have obtained credit for all sums now outstanding. This holds true even if the court later orders your spouse to make all payments due to that creditor, for the court cannot in this proceeding cut off or materially affect the rights of existing creditors nor force the creditor to look exclusively to your spouse for payment.

This applies to those creditors you have lines of credit with, for example, (1) Charge card companies, (2) banks at which you have lines of credit or to whom you have given continuing guarantees, and (3) others whom you or your spouse have dealt within the past in such manner as to give them the impression that either spouse can commit the other to a transaction. An example of this group would be landlords and suppliers of goods and services. All such persons or firms will usually have the right to assume until they are informed to the contrary that each of you continues to be responsible for all debts incurred by the other. For example, your spouse may continue to charge on accounts, even if restrained from doing so by the court, and you will still be bound and required to pay the creditor. Therefore, you should take action immediately to notify all creditors by both telephone and then in writing that you will not be responsible for future charges or debts incurred by your spouse. Keep a record of the communications with your creditors, including the date and to whom you have directed your communications. Please note all applicable account numbers on your correspondence to creditors and use certified mail, return receipt requested when possible. If you need assistance, please notify an attorney immediately.

Beneficiaries. It is advisable to change the beneficiaries on your life insurance before you are restrained by the court (when you file your divorce or are served with divorce papers). You may wish to consider checking the beneficiaries on your life insurance policies at this time to determine the present status. This also applies to retirement plans or other "fringe benefits" at your place of employment.

Closing Accounts. To avoid possible embarrassment to your spouse and increased friction in your relations with your spouse, you should let him or her know what accounts and credit lines you are closing. Also, prior to separation, if you have not yet separated, secure your account records, notes, stocks and bonds and all other important documents which relate to your case. If you close accounts or have a large sum of cash, be safe and put such money in personal traveler's cheques.

Separate Monies. It is important that separate property monies you receive in the future be kept separate and identifiable. If you receive monies from earnings after separation, or from another separate property source (e.g., from the sale of an asset you owned before marriage, or from a gift or inheritance), keep them in a new account in your name only. The reason for this is that when separate property is mixed with community property the entire fund may be deemed community property. Certain monies or property received after separation may also be community property.

Separate Property. To the greatest extent possible, pay all debts on separate property from separate property sources. For example, if you own a separate property piece of real estate with a mortgage thereon, make the payments from post separation earnings. This will assist in maintaining the position that the asset is, and remains separate property.

Debra Crawford Annis
Law & Mediation Offices
www.DebraCrawfordAnnis.com

Click here for printable form. 

Divorce Flow Chart. 

Some of the most common questions I receive are about the divorce process and how it works.  Here is a Divorce Flow Chart that illustrates the paperwork needed and the divorce process.  This chart shows what documents are needed at each stage of your divorce proceedings. 

Debra Crawford Annis
Divorce Flow Chart