MARITAL SETTLEMENT AGREEMENT CHECKLIST

Transcription

1 MARITAL SETTLEMENT AGREEMENT CHECKLIST This checklist reviews common issues that are addressed in a Marital Settlement Agreement. Not every issue will apply to your situation. I. Property Division a. Real Estate i. Marital Home 1. Identify NEED LEGAL DESCRIPTION 2. Use and possession 3. A length of time for responsibility for / liability for costs of: a. Present / future mortgages (including lines of credit / home equity loans) b. Real estate taxes c. Homeowner s insurance d. Condo fees e. Maintenance f. Major repairs / improvements g. Capital gains upon sale (if applicable) 4. Changes in use and possession a. Upon remarriage of one party b. Upon a change in child placement 5. Future ownership form a. Awarded to one / joint ownership b. Joint mortgage liability c. Refinancing: now, future, upon certain events d. Acknowledgement of liabilities and possible difficulties in obtaining future mortgage for the non-occupant 6. Sale of residence to third party a. Timing of sale 1

2 b. Costs of preparation for sale c. Appraisal and pricing of house d. Definition of proceeds e. Division of proceeds f. Tax consequences (if capital gains tax) g. Procedure for changing price or listing agent 7. Buy-out of residence (awarded to one) a. Agreement regarding price b. Time of transfer c. Payment d. Capital gains consequences (if applicable) e. Refinancing? f. Quit claim deed / transfer tax return 8. Misc. a. Homestead rights b. Mortgage interest / property tax deductions ii. Other real estate 1. Identification (NEED LEGAL DESCRIPTION) 2. Issues as listed under Marital Residence, if applicable. 3. Rental property a. Who keeps income? b. Responsibility for upkeep? c. Tax consequences 4. Real estate trusts a. Who keeps income? b. Responsibility for upkeep? c. Tax consequences b. Retirement Accounts i. Description of plan (IRA, 401(k), pension, FERS, WRS) ii. Value of plan: how determined? 1. Statements 2. Valuation: estimate or professional? 3. Costs of valuation iii. Options for division (may vary) 1. Cash out 2. Percentage division 3. Assign to party who holds title 4. Equalization 5. Qualified Domestic Relations Orders (QDROs) 2

3 iv. Survivorship benefits c. Other Assets i. Bank accounts ii. Investment accounts iii. Motor vehicles 1. Value (kbb.com, nadaguides.com): retail, private party, trade-in? 2. Transfer of title (if and on vehicle title) 3. Responsibility for auto loans / debt iv. Life insurance 1. Cash value 2. Ownership 3. Coordinate with support provisions? v. Businesses 1. Identification 2. Description 3. Form of ownership 4. Value (how determined) a. Business valuation b. Equity c. Goodwill 5. Division, buyout, other disposition vi. Personal property 1. Value / appraisal 2. Take turns choosing 3. Include in balance sheet? vii. Miscellaneous property 1. Trusts 2. Pending legal action, settlements, liabilities 3. Royalties, copyrights d. Equalizing payments i. Amount ii. Terms of payment (amount, duration) iii. Transfer incident to divorce iv. Interest? v. Consequences of non-payment e. Miscellaneous issues i. Transfer of title or ownership ii. Liabilities iii. Agreements for removing personal property from residence 3

4 II. III. Debts a. All debts listed in settlement agreement or financial disclosure statements. (Use credit reports to be sure all are listed) b. Marital property debts: responsibility for payment / servicing c. Refinancing d. Close joint credit accounts or put in the name of one spouse only e. Consequences of unpaid debts? i. Hold harmless provisions ii. Enforcement (seek legal advice?) Support a. Health insurance i. Coverage for children, if any 1. Cost a. Family plan single plan = cost? b. Plan with child(ren) plan without child(ren) = cost? c. Family plan / number of people covered = cost / person? 2. Medical, dental, psychological, orthodontic, hospital, counseling, drug treatment. 3. How paid? 4. Insurance cards / plan information 5. Uninsured medical expenses a. How divided b. Standards for non-elective care if joint custody c. How reconciled: how often, payment terms d. Use of Our Family Wizard or similar program? ii. Coverage for adult children, if any? iii. Coverage for adults 1. Notification of COBRA rights 2. Responsibility for coverage 3. Legal separation vs divorce b. Maintenance i. Waivers for one / both parties ii. Amount / duration 1. If held open, terms of hold-open agreement and reason for holdopen. 2. Explain logic of amount / duration (OPTIONAL) 3. Annual review / adjustment? 4. How calculated 5. Use of financial neutral 4

5 iii. Non-modifiable support ( Section 71 ) iv. Terms of payment (WI SCTF, direct payment, etc.) v. Tax consequences (taxable to recipient, deduction to payor) 1. Include tax recitations in agreement c. Arrears i. Terms for payment ii. Terms for waiver IV. Taxes a. Year of Divorce i. Exchange of year-to-date information as of date of divorce ii. Neutral tax preparer? 1. Costs shared / allocated to one / paid from refund 2. Choice of tax preparer b. Prior years i. Responsibility for liabilities ii. Division of refunds iii. Tax cooperation c. Capital gains taxes V. Additional provisions a. Resumption of former surname b. Security for payments i. Life Insurance terms (maintenance / property division) ii. Other forms of security VI. Standard terms a. Voluntary nature of agreement b. Consent to mediation c. Mutual / general release d. Full disclosure / Reliance e. Restraining provisions f. Execution of Documents g. Divesting of property rights h. Survival of agreement after judgment i. Jurisdiction j. Approval of court k. Waiver of appearance 5