Clearly State Who Is To Receive Each Item of Property.
This seems like common sense, but sometimes people presume that if Husband or Wife is going to live in or use the marital home for instance, then obviously the property is theirs. As with all contracts, you need to be very clear about who is to own what, free and clear of any claims of the other party. Start basic and get more specific as you go. Use does not equal ownership.
Require Each Party To Sign Deeds And Titles
Providing that one party is to receive the marital home free and clear from any claim of the other is a good start. Now we know who is to own the property. Unfortunately, if you fail to include a requirement that the party releasing their claim on the home sign a deed, then you could wind up without good title to the property by law, making it next to impossible to sell without major litigation. If you to get a home, car, boat, registered animals, or any other titled or deeded property, include a requirement that the other party sign the instruments that our required for legal ownership.
Now you have all of the property clearly divided, and each party is required to sign legal instruments clarifying legal ownership. Did you include deadlines? You better unless you do not mind being delayed over and over again because the contract does not require any party to do anything within any particular time frame. In my Raleigh divorce practice, I typically try to deal with titles and deeds when signing the agreement, or I provide a 10 or 30 day deadline from request. This includes deadlines for other parties to remove personal property items.
Require A Refinance Of Joint Debt
I cannot tell you how many times I have had clients come to me after preparing their own separation agreement and explain that their spouse who received the house did not take their name off of the loan. Naturally, my Client's credit is severely affected by the spouse's late payments, or they are unable to borrow money as this mortgage is still on their credit report. Well, if simply transfer ownership of property without requiring a refinance or sale upon the other party, they will not be obligated by the contract to remove your name from the loan. This is one of the most common and devastating mistakes with self drafting a separation agreement. Require a refinance, with a deadline. Include provisions that if they are unable to refinance, the property must be sold, and language should be included that ensures cooperation with the marketing the home properly.
Dealing With Alimony
Alimony provisions need to be very clear. Either it is waived by each party, or will be paid by one party to the other in a certain amount each month, for a fixed number of months. Spell out the details. When does it start, when is it due each month, etc. List the events that will terminate payments, such as death, remarriage, cohabitation, or any other terminating event you agree upon. You can simply refer to the statute in your state for general terminating events for alimony if you prefer.
Child Support and Child Custody
First, remember that child custody agreements in contract form are not enforceable by courts, and they can always be changed. Court orders are much more affective and enforceable. That being said, they do have value and courts do defer to them on many occasions. Be clear about the schedule, holidays, and times out of school. Include provisions about who picks up and drops off. Include provisions for communication, general welfare, and decision making. Spell out common sense good parenting requirements. Child support should be clearly set out with an amount, due date, and starting date. Their is additional language that should be included depending on your jurisdiction regarding modifications or reviews.
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