Checklist for Divorce Separation Agreements

Checklist for Divorce Separation Agreements
This checklist is intended to be a guide that is comprehensive and specific. Not every Separation Agreement will include provisions on each of the listed points.
A. Place for Names of Parties
B. Date/Place of Marriage
C. Name(s) /Date(s) of Birth of Children

A. Legal Custody
B. Physical Custody
C. Living Arrangements/Parenting Plan (including weekdays, weekends, birthdays, transportation, holidays, and vacations)
            1. Current
            2. Future Modification / Periodic Review
            3. Each parent's access to kids when they are with the other parent
D. Relocation
E. Travel Outside Massachusetts
F. Notification of illness
G. Access to Children's Records
H. Access of other relatives to children
I. Emergency decisions
J. Parental Cooperation/Non-Disparagement
K. Religion and Religious Training
L. Contact of children with parents' new partners

A. Support Amount
            1. Initial Amount
            2. Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines)
            3. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.)
            4. Allocation of child care cost
            5. Cost of vacations
B. Duration (including definition of emancipation, and effect of death of payer)
C. Time of Payment
D. Periodic Review / Future Modification
            1. If more than one child: effect of emancipation of older child(ren) on child support
            2. Effect on child support when child attends college
            3. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
            4. Renegotiation (without specific method for adjustment)
E. Tax Effect
            1. Not taxable to recipient
            2. Not deductible by payer
F. Dependency Exemption(s)
G. Children's Accounts/Investments

A. Definition of education (college/private elementary or secondary school)
B. Definition of educational Expenses (e.g. tuition, room & board, application fees, travel home, books, computer, etc.)
C. Apportionment of expenses (children's funds, work, scholarships, parental contributions)
D. Involvement of parties in process of choosing college to which applications will be made
E. Involvement of parties in financial aid applications

A. Waiver of future alimony
B. Amount
C. Duration and reasons for termination
D. Time of Payment
E. Periodic Review/Future Modification
            1. Calculation method
            2. COLA
            3. Renegotiation (without specific method of adjustment)
F. Tax Effect
            1. Tax deductibility
            2. Tax reporting for inclusion of income
G. Effect of Alimony Termination on Child Support Obligation

A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums and co-payments
F. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy)
            1. Allocation
            2. Approval
G. Loss of coverage / Alternate coverage

A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums:
            1. COBRA costs, if relevant
            2. Upon remarriage of either spouse
F. Uninsured medical/dental expense
G. Loss of coverage/Alternate coverage

A. Identification
B. Allocation of cash value (if whole life)
C. Amount (death benefit)
D. Ownership
E. Responsibility for payment of premium
F. Beneficiary (optional establishment of trust)
G. Future obligations:
            1. Duration, adjustment of amount
            2. Documentation/Option to review policy
            3. Default provision (claim on estate)

A. Property address/county/state/owners/form of ownership
B. Use and Possession
C. If Joint Ownership:
            1. Type (tenants in common; joint tenants)
            2. Responsibility/Liability for Expenses
                        i. Present/Future mortgages (including equity lines)
                        ii. Real Estate taxes
                        iii. Homeowner's insurance
                        iv. Maintenance
                        v. Capital Improvements
                        vi. Repairs (major and minor)
                        vii. Condo fees (if relevant)
            3. Division of rental income (if any)
            4. Tax Consequences: allocation of tax payments and depreciation, other deductions
            5. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership)
            6. Indemnification
D. If Transfer to Third Party:
            1. Timing of transfer or sale
            2. Allocation of costs of preparation for sale (including repairs)
            3 Appraisal and setting asking/selling price
            4 Definition of proceeds
            5 Division of proceeds (including whether payer of mortgage gets credit for payment of principal)
            6. Capital Gains tax consequences
E. If Transfer to Spouse:
            1. Determining price (mechanism for including any deductions from equity, e.g. equivalent of realtor's fee, capital gains taxes, title V or other necessary repairs)
            2. Time of transfer
            3. Method, timing of payment
            4. Responsibility of sole owner for expenses after transfer
            5. Does non-owner stay on mortgage? If so, indemnification provision
            6. Tax consequences (e.g. transferee liable for capital gains taxes)

            7. Homestead
A. Pension/Retirement
            1. Description of plan(s)
                        i. Contributory plan
            ii. Defined benefit plan
            2. Valuation of plan, who pays for valuation

            3. Transfer provisions
            4. Division
            5. QDRO requirements, who pays for QDRO preparation
B. Securities (stocks, bonds, stock options)
            1. Identification
            2. Balance of account(s)
            3. Ownership
            4. Division, buy-out, or other disposition
            5. Restrictions on voting, sale
C. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit)
            1. Balance of account(s)
            2. Ownership
            3. Division or other disposition
D. Family Business/Closely-held Corporation
            1. Identification
            2. Description
            3. Form of ownership (if less than 100%, amount of ownership)
            4. Value, and who pays for valuation
            5. Division, buy-out, or other disposition
E. Real Estate (other than marital home)
            1. Description of property
                        i. Ownership form
                        ii. Usage
                        iii. Rental
                                    1. Right to income
                                    2. Obligation for expenses
                                    3. Tax consequences
F. Partnerships and Limited Partnerships
            1. Identification
            2. Value
            3. Division, buy-out, or other disposition
G. Pending Legal Actions
H. Tangible Personal Property
            1. Possession and storage
            2. Division; Provision for removal
I. Trusts
            1. Identification
            2. Present or future interest in trust, nature of interest
            3. Value
            4. Division, trade-off, or other disposition
J. Inheritances, actual or potential
            1. Identification
            2. Present or future interest in inheritance, nature of interest
            3. Value
            4. Division, trade-off, or other disposition
K. Vehicles
            1. Make, model, year
            2. Who holds title
            3. Ownership upon divorce
            4. Responsibility for Loan/Hold Harmless
            5. Cooperation regarding applicable transfers
L. Intellectual Property, including royalties, copyrights, trademarks, patents, etc.
M. Cemetery Plots
N. Frequent Flyer Miles
O. Pets
P. Photo Albums, family videos
Q. Waiver of rights to any property purchased by spouse after agreement is executed but before judgment of divorce becomes final

A. How to file for last year of marriage
B. Cooperation if joint filing
C. Use and reporting of available deductions
D. Division of refund or liability
E. Contribution (if joint)
F. Indemnification
G. Cooperation for audit/investigation of prior years' tax returns
H. Capital gains tax consequences for all assets and/or capital loss
I. Adjustment for change in tax laws

A. Type of debt
B. Allocation of responsibility for debts, including debts incurred after agreement is executed but before the judgment of divorce becomes final
C. Indemnification

A. Warranties about full disclosure of finances
B. separate and independent legal advice
C. Procedure for future disputes (mediation clause)
D. Responsibility for payment of mediation fee/legal fees/filing fees
E. Privacy clause
F. Debt payment designated as support and maintenance
G. Promise of no past and future contraction of debt in the other's name
H. Waiver of right to take against will
I. Waiver of right to after-acquired property
J. Right to dispose of property by will
K. Mutual release of all claims
L. Entire agreement (no oral or extrinsic agreements)
M. Acknowledgement of fairness and reasonableness of provisions
N. Massachusetts contract.
O. Severability; the unenforceability of a provision shall not affect validity of other provisions
P. Waiver of provision not waiver of subsequent breach/default of provision
Q. Modification, amendment or waiver in writing to be valid
R. Forever binding and conclusive on heirs, executors, assists
S. Indemnification for breach by breaching party or his/her estate survives death
T. Effect of Bankruptcy
U. Notarization

Note: This checklist was originally  published by the Massachusetts Council on Family Mediation