Things to Consider in a Divorce Agreement

Divorce is a difficult process fraught with emotional discomfort and difficult decision-making, but you are not alone. Some 39% of U.S. marriages end in divorce these days. Whether you choose to tackle an uncontested separation on your own or you enlist the assistance of an experienced divorce attorney, filing a legally-binding divorce settlement agreement will be one of the first steps.

General Inclusions in a Divorce Agreement

The New York and New Jersey courts offer guidance as well as forms for those seeking a divorce in these states. The agreement will include all the basic facts relevant to the divorce, including:

• The full legal names of both parties involved.
• The date on which you got married.
• The date of your separation.
• The names and ages of any minor children.
• The grounds for divorce (or “no-fault,” if applicable).
• Current living arrangements and addresses of both parties.

Next, the divorce settlement agreement will dig into the division of debts, assets, properties, and children.

Assets

Anything that is owned since the date of marriage must be included in the divorce agreement. Whatever has been acquired after the wedding is considered “joint” or “communal” property, even if one spouse was the sole user.

A variety of assets may be considered, such as:

• Homes and properties
• Automobiles
• Recreational vehicles
• Home goods, art, and furniture
• Clothing and jewelry
• Antiques and memorabilia
• Joint and individual bank accounts
• Investment portfolios earned during the marriage
• Retirement assets earned during the marriage

You’ll need to come up with a specific value for each item inventoried and decide who is going to own what. If these discussions are not civil, you’ll need to hire a divorce lawyer to serve as a mediator.

Debts

Anything owed since the date of marriage must also be included in the divorce settlement. Debts may include:

• Mortgage payments
• Car payments
• Bank loans
• Student loans
• Credit card balances

You may agree to pay off all joint debts 50/50 or you may determine that the spouse whose name is on the ownership or loan documents will assume responsibility for repaying it.

The House

A domicile tends to be the largest asset involved in a legal separation. Most divorcees will choose between:

• Selling the house and splitting the proceeds for a clean, equitable break.
• A buyout, where one spouse keeps the home and pays the other’s interest.
• Co-owning the house, where one spouse moves out but may continue paying the mortgage.
• Agreeing to a future buyout or to sell at a more favorable time in the market.
• Keeping the house as a co-owned rental, with supplemental income split 50/50.

In any case, it’s a good idea to call a professional home appraiser to determine the worth of the property. If the house is to be sold, comparative market analysis from a real estate agent can help you come up with an asking price.

The desire to keep the house can be fraught with emotions. Still, the spouse who stays will typically need a suitable debt-to-income ratio, the ability to qualify for a refinanced mortgage, and the money to buy the other spouse out. In rare circumstances– usually when children are living in the home– the departing spouse agrees to continue maintaining the mortgage for a time.

Taxes are another consideration. The government allows capital gains tax exclusions up to $250,000 for a single filer or $500,000 for a married couple, so proper planning will be necessary to avoid increasing your tax liability.

Retirement Accounts

Retirement account assets accumulated in 401ks, IRAs, or pensions during the duration of the marriage will also require division. A Qualified Domestic Relations Order may be necessary to authorize the division of the account. IRAs and 401ks may require a rollover. In some cases, a spouse can use retirement assets as the funds for a home buyout.

Insurance

Life insurance policies are commonly amended or terminated in the event of divorce. If child support or alimony is owed, the divorce settlement should include a provision that the paying spouse will also maintain a life insurance policy sufficient to secure this obligation. The policy should name the other spouse as the beneficiary to continue alimony or child support payments should the spouse die.

The Children

If there are children under 18 years of age, you will need to decide upon sole custody, split custody, or shared custody. Sole custody with visitation rights is the most common arrangement. Still, an increasing number of divorced parents are deciding to have the kids living in two homes with a 50/50 split, 60/40 split, or based on school/weekend obligations.

Holidays will need to be agreed upon as well. When it comes to child support payments, you cannot sign away a child’s right to receive support, but you can waive your right to receive spousal support. Each state has a minimum child support guideline, but you may elect to include compensation for extra expenses like orthodontic treatments, sports, music lessons, or summer camps.

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Without a formal discovery process, the judge cannot say whether the terms are “equitable,” but the settlement terms can be implemented as long as the completed agreement falls in accordance with state and federal law. Having a family lawyer look over the document for errors, omissions, typos, and vague language can be beneficial before submitting the agreement to the court.

Working with such an impartial third-party mediator can also aid in a compromise where it is needed to ensure fair terms for both sides. A divorce is a complex process, and it’s easy to miss details that will significantly impact your future. Contact us for a confidential consultation with an experienced divorce lawyer if you live in Bergen County, NJ or Rockland County, NY.