Your Divorce Settlement Checklist

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Very few divorces actually go to trial. In fact, a private agreement is exactly what most people want in lieu of a lengthy and expensive trial. To avoid going to court, divorcing parties and their respective attorneys can negotiate the terms of a marital settlement agreement that will address the financial aspects of their divorce action. This document outlines the terms of the spouses’ agreement with respect to the division of assets, debts, and sometimes also regarding matters related to minor children. Because you will be held to every aspect of the agreement, it is important to address every necessary item and contingency that may arise during your divorce and afterward.

What Is the Marital Settlement Agreement?

A marital settlement agreement (MSA) is a comprehensive contract between two divorcing spouses that provides for every issue that may arise in your divorce. Common issues include matters related to property and debt distribution, child custody and support, and alimony.

Once the parties sign the agreement, they may submit documents to the court to finalize the divorce process and request that a Divorce Decree be issued. Although the court does not become involved in the negotiation of MSAs or approve of the same, the court will retain jurisdiction to enforce the terms of the MSA. In the event either party fails to abide by the terms of the MSA, the other party can file a motion with the court to enforce its terms or to find the other party in contempt.

Note that an MSA can be drafted and executed at any time during the divorce. It is important to work with an experienced family law attorney who understands what things to ask for in a divorce settlement. An experienced attorney can help ensure the MSA is complete and comprehensive as to every pertinent issue. If your divorce is contested, your attorney will work to avoid a trial by negotiating a settlement agreement throughout every stage of the process.

Divorce Document Preparation

How to plan for a divorce depends in large part on your ability to produce necessary documentation that will back up any claims related to property division, child custody and support, alimony, and other important issues. Note that every divorce is different. Your divorce may require additional documentation beyond what is suggested here in this checklist. Similarly, some items listed below may not be applicable to your circumstances.

Personal Information

This includes general information about you and your spouse including name, birthday, and social security number. Specific items to gather include:

Contact information such as an address, phone number, and email address;
You and your spouse’s employment information, including any records from the past three years showing the length of employment, salary, and benefits;
Information about previous marriages, including the final divorce order, and any custody and child support orders (if the parties have children from previous marriage(s));
Temporary orders, including restraining orders, protection from abuse (PFA) orders, temporary alimony awards, and temporary child custody and visitation orders;
Personal records of each child of the marriage including birth certificates;
Any valid prenuptial or postnuptial agreement you may have entered into before or after the marriage;
Any separation agreement you are currently under;
A document showing your itemized monthly budget; and
Documentation on any other court proceedings you may be involved in.

In addition, you need to list your separate property that you will be keeping after the divorce. Separate property includes all real and personal property owned before the marriage, acquired via gift or inheritance, or already provided for in a valid prenuptial agreement.

Personal Property Information

Prepare an inventory list with estimated resale values and documentation for all household items, including luxury items (jewelry, antiques, art, and other high-value collectables). In addition, make copies of all documentation related to your motor vehicles.

Estate Planning

Identify health and life insurance policies, any wills and living trusts, and any healthcare directives and power or attorney forms of each spouse.

Work

Include all employee compensation records, including pay stubs, and the most recent year-end statements for both you and your spouse. Gather all of the following for the past five years:

Tax returns for both you and your spouse;
Tax returns for any owned business; and
Loan applications and any other relevant financial statements whether prepared for you separately, jointly with your spouse, or for a business you own or have an interest in.

If you own your own business, gather profit and loss statements, tax returns, and any documentation related to its valuation and appraisal.

Real Estate Documents

Identify all mortgage statements for any owned real estate, deeds to all real property, loan applications including refinances and home improvement loans, home insurance documentation for all real properties, utility bills, and appraisals.

Debt Information

Include all documentation related to student loans, unsecured loans, lawsuit judgments, credit card statements, any other debts, and a copy of your credit report.

Savings, Insurance, and Investments

Include all recent statements for separate and joint financial accounts including any bank account in the child’s name. Other relevant records include:

Documentation showing all cash holdings;
Tax documents showing expected refunds and child tax credit;
Insurance policies including the type of policy, amount, and the beneficiary;
Documentation showing all stocks, bonds, investments, mutual funds, secured notes, and other investments;
Retirement accounts and pensions; and
Statements showing accounts receivable and money owed (including lottery winnings).

In addition, include documentation for any stock options, stock purchase plans, and valuations of any intellectual property asset (copyrights, trademarks, patents, licensing agreements, etc.).

Divorce Financial Checklist

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Once you have gathered all necessary documentation for your divorce settlement checklist, you are ready to begin negotiations. As you do so, it is important that each spouse has an accurate understanding of the other’s finances. Both spouses must resolve important financial matters before a court will order a divorce, including:

The division of major assets including houses, cars, and vacation properties;
The division of personal effects including home furnishings;
The division of debts including student loans, credit card debt, and mortgages;
The division of banks accounts, financial investments, and cash holdings;
The division of retirement assets including pension plans, severance packages, annuities, and 401ks;
Who receives the child tax credit for federal income tax purposes;
Insurance matters including health insurance and whether spouses will maintain any rights under the other’s life insurance policy;
Terms of any spousal support including amount, time period, and whether terms are modifiable; and

In addition, divorcing spouses need to agree on who will pay for the divorce, including lawyer fees and court costs. Costs are typically split with each party paying their own lawyer fees.

Divorce Child Custody Checklist

In addition to property division and spousal support, divorcing spouses with minor children must cooperate to settle all related matters. This includes designating decision-making authority, setting child support and custody schedules, and formulating contingency plans in the event of emergency or disagreement. You and your spouse will need to agree on

Who will be the primary decision-maker for the children;
A custody schedule, including summer vacation and holidays;
Where and at what time the parents will exchange the children;
The allocation of costs for extracurricular activities like sports, school trips, and summer camp;
The amount of child support to be paid;
Health insurance coverage for any children (including addressing any special medical needs);
Whether new love interests may be around the children, special rules for the children that you both want to follow, whether the children can stay home without a parent present, and other similar matters;
Procedures to resolve future disagreements and stalemates; and
A parenting plan that is in the best interest of the children.

If you and your spouse can agree on all the above referenced matters, then you are well on your way to a cheaper and easier divorce. However, if there are still unsettled matters, mediation provides an opportunity to avoid trial.

How to Prepare for Divorce Mediation

If the parties cannot agree on every term in an MSA, then it may be productive to agree to attend mediation. Mediation seeks to prevent the need for a trial by encouraging the parties to compromise on the remaining contested issues. During mediation, the parties and their respective lawyers go to separate rooms. A neutral third party (typically a trained attorney) then goes back and forth between the spouses communicating settlement offers and encouraging compromise. The following are helpful steps to help prepare for a mediation:

Gather all documents listed above in your divorce settlement checklist;
Keep an open mind and prepare to make sacrifices;
Consider the best interests of any minor children; and
Set an upward limit on how much you are willing to spend on the mediation, including attorney fees.

In addition, it’s important to communicate effectively without assigning fault. It’s easy to point the finger at the other spouse when going through a divorce mediation. However, when you assign blame, divorcing spouses become defensive and communication is limited. This ultimately can cause a mediation to fail. Instead, be aware of what triggers you and think ahead about how you will respond if or when the other spouse provokes you.

Additional Things to Ask for in a Divorce Settlement

50/50 Parenting Time

Consider joint physical custody if you believe you and your spouse are capable of cooperating and you live close enough to each other to make shared custody practicable. Equal custody benefits both the parents and the children. The greatest benefit is that equal time reassures children that they are a meaningful and important part of both parents lives.

Alternating or Sharing Custody for Holidays and Birthdays

A typical custody schedule would involve a schedule wherein the parties alternate or share major holidays. Alternating or sharing holidays ensures fair access to important milestones for both parents.

Right of First Refusal

Who will care for the child during your parenting time if you aren’t available? The right of first refusal requires the parent exercising parenting time, who can not keep the child on their assigned days, to provide the other parent an opportunity to take the child in lieu of a babysitter. This is often overlooked in divorce agreements and is a common cause of conflict.

Therapy for the Child

Divorce can be devastating for a child. If your child is unable to adjust to the new circumstances, therapy may be a good option. Write into the MSA that both parties are responsible for paying for and transporting kids to therapy sessions.

An Experienced MSA Negotiator Who Will Fight for You

Marital settlement agreements offer divorcing couples an opportunity to avoid an emotional and costly trial. While possible, it is not advisable to try to negotiate an MSA by yourself. An experienced family law attorney can evaluate your particular circumstances, and help better determine what things to ask for in a divorce settlement. With years of experience in MSA negotiations and divorce mediations, we will work with you to determine the best course of action to prepare for divorce and achieve the best possible outcome for you and your children. Contact the Dusharm Law Office today for a free consultation.