Don’t you hate when you make a grocery shopping list and then, when you get home, you find that you forgot to buy the most important thing that was on the list? Me too. And I do it all the time. Last week it was waffles.
Well, don’t let your property settlement agreement end up like your grocery shopping trip. There are specific items that you should never forget to include in your divorce agreement. Want to know what they are?
Here are my 5 things that you must include in your divorce agreement:
- Deadlines for when action items need to be completed;
- Who is going to initiate the completion of certain action items;
- A plan for “what ifs and “worst case scenarios”;
- Specific information about what is being divided in your divorce agreement; and
- Everything that you have agreed on!
Don’t forget to include deadlines in your divorce agreement
Parties never forget to include how their property is going to be divided in their divorce agreement. However, they sometimes forget to include deadlines as to when that division is going to occur. What do I mean by this? Let me explain.
For example, let’s say that your spouse is going to keep your marital home and has to refinance the mortgage and buy out your interest. When does he or she have to complete this process? 90 days from the signing of your agreement, 1,000 days from then? If you don’t include a date then how do you know? This is why deadlines need to be included in your divorce agreement.
Why is including deadlines in your divorce agreement so important? If you or your spouse does not follow the terms of your agreement then the other party is going to file something with the court to have them address the violation.
Let’s use my example again. If you don’t have a deadline as to when the refinance is to be completed, how can a judge say that your spouse is violating your agreement? Have a deadline and showing that your spouse did not comply with that deadline makes it a lot easier for you, and more importantly, the court, to know if your spouse is in violation of the agreement.
Don’t forget to include who is going to initiate the completion of certain action items in your divorce agreement
It is likely that your divorce agreement contains several actions items that need to be completed in order to fulfill its terms. Similar to deadlines, your divorce agreement should also include who is going to be responsible for doing what. What does this look like? Let’s use another example.
You and your spouse have a joint bank account that is still open after separation. The account needs to be closed. Who is going to be responsible for doing this? You? Your spouse? Again, responsibility for this should be included in your divorce agreement. What if closing the account costs a fee? Who is going to pay that fee? Is it going to split between the two of you? Consider and include this as well.
Why is deciding who’s going to be responsible for what so important? In short, if your agreement doesn’t include this information then those items won’t get done. Or, you and your spouse (and your lawyers) are going to fight about who should do what and how the costs (if any) should be paid. That is a waste of time and legal fees! Do you want to spend more money on your divorce after you have signed the divorce agreement! I’m assuming (and hope) that the answer is no. Avoid this and include who is going to be responsible for what in your agreement before it is signed.
Don’t forget to include “worst case scenarios” in your divorce agreement
I always joke with my clients that half of my job is to think about the worst possible things that their spouse can do to them. Depressing? A little. Helpful? Yes. So, what do I mean by including worst case scenarios in your divorce agreement?
Let’s go back to my mortgage refinance example as this is where I see people fail to consider “worst case scenarios” most. Does your agreement include what will happen if your spouse is unable to qualify for a new mortgage to be able to buy you out? Will the house get listed for sale? Do they get a chance to try again? Not sure? Your agreement should say. Why? Because, what if that happens?
Another place I see people fail to consider “worst case scenarios” is when parties divide stock that they receive from their employer. What if that stock can’t be transferred to non-employee spouses? How will the non-employee spouse then get their fair share? Consider what you will do in your divorce agreement to avoid such a situation (and the required subsequent negotiation) later on.
No one wants to spend money on renegotiating a divorce agreement that they have already spent a lot of legal fees to get. And, to be sure, you can’t predict every possible thing that may happen. I mean, look at COVID-19. However, including some more likely “what-ifs” or “worst case scenarios” will help protect you and your divorce agreement.
Don’t forget to include specific information about what is being divided in your divorce agreement
Specificity is important in any family court document. However, I often see parties forget this and use vague/general language in their divorce agreements, particularly when they are using forms they got from the internet. So, what specific information should you include in your divorce agreement?
When you are deciding who is going to keep what in your divorce agreement, make sure you identify the “what.” For example, if you are keeping a specific bank account, say the name of the account, like, Wells Fargo Savings Account x1234.
Why is this important? You and your spouse worked hard to come to an agreement, right? As such, you should want to make sure that when you go to actually divide up your assets, there is no confusion as to what you are getting and what he or she is keeping. That confusion will only led to more acrimony and, you guessed it, legal fees. No fun.
So, how can you avoid this? If you are using an attorney or a mediator, make sure that you provide them with the names and accounts numbers of the assets that you are dividing. In general, as long as they have all the information, they are going to include it in your divorce agreement.
What if you want to DIY your divorce? If you can’t afford an attorney and are doing this on your own, make sure that you use divorce forms from a reputable company like Nolo.com. Nolo is staffed by attorneys and provides basic legal forms (also prepared by attorneys) to help couples handle small legal issues themselves. If you are going to do your own divorce agreement, Nolo is a great place to start.
Don’t forget to include every that you have agreed upon in your divorce agreement
Did you and your spouse make an agreement about the transfer of a car or bank account? Did your spouse promise you an extra $5,000 if you move out in 30 days? Are those understandings included in your divorce agreement? They should be.
Why is this important? In general, if it isn’t included in your final divorce agreement, it is not going to be considered part of the agreement. This is particularly important if you try later on to enforce that understanding in front of a judge. If the judge doesn’t see that understanding included in your divorce agreement, he or she isn’t going to require your spouse to abide by it.
So what should you do? Most importantly, make sure everything that you have agreed upon is included in your divorce agreement! Second, if you and your spouse decide to amend parts of that agreement later on, make sure that you do so in writing. That way, if that amendment is not carried out, you have something to show to the judge.
Did you include these 5 things in your divorce agreement?
Coming to a divorce agreement can sometimes feel like the drafting of the Constitution or the Magna Carta. That’s why it is so important that you don’t forget to include the following 5 things in your divorce agreement:
- All actions have a deadline by which they need to be completed;
- Decide who is going to be responsible for what action items, how the cost (if any) is going to be paid and include both in your divorce agreement;
- Don’t forget to consider and include what you will do if “what ifs” and”worst case scenarios” actually occur;
- Be specific with your identification of assets and use well prepared legal forms (like the ones from Nolo!) if you are drafting your divorce agreement yourself; and
- Make sure that everything that you’ve agreed to is included in your final divorce agreement;
Preparing and finalizing your divorce agreement takes a lot of effort. Don’t blow all that hard work and money by failing to include these items. Follow these simple tips and you will avoid most post-divorce agreement issues.
What’s next on the Divorce Lawyer Life?
Staying at home during the Coronavirus has given me a lot of extra time to catch up on Netflix. Have you had a chance to see the Marriage Story yet? While it didn’t win Best Picture at the Oscars, I think the movie is a “best picture” when it comes to teaching you about getting divorced. Next week I’ll give you my thoughts on the film from a divorce lawyer’s perspective and how I think it can help you through your divorce and separation.
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