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Wednesday, December 12, 2012

A Primer on Divorce -- the three key areas and samples

Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too).

There are three areas to divorce, and one special cavaet. The three areas are:
1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife's name...still joint). Things to remember here are retirement plans, stocks, and insurance plans. Be careful here...you only get one bite at the apple to get it right! Once entered, this cannot be easily changed. The separation agreement also covers spousal support. Spousal support is not automatic and is controlled by two factors: the length of the marriage, and the income of the respective spouses.

2. Custody: When there are children involved, an arrangement for where the child(-ren) will reside must be made. This includes primary custody, and physical custody. "Primary Custody" is called different things in different jurisdictions, but mainly applies to who is repsonsible for the child on an ongoing basis. Where does the child live for purposes of school determination, state care etc. Physical custody deals with the actual division of the which days are spent with which parent. The courts in all three VA, MD, DC jurisdictions seek a 50/50 split by default. The burden of modifying that custody arrangement rests with the party seeking the change, and is often the number one cause of litigation. Custody issues also determine payment of child support. Determination of child support is a matter of state posted payment schedules, and is based on (a) amount of custody each parent has, (b) the income of each parent, and (c) the best interest of the child.

3. Divorce Decree: The decree is actually the end of a multi-step process that begins with a motion for...you got it! Divorce. It is called a motion for divorce "mensa et thoro" -- this is the type of divorce that is predicated on a separation starting once the court filing is made. This divorce pleading prevents the spouse who is "leaving" the marital home from being blamed for abandonment. It also starts the "clock" on the divorce proceeding. If the "time apart" requirement is complete before this filing (i.e. filing after the separation period), or after the separation the filing is amended to a complaint for divorce "vinculo matrimonii" - or the final divorce. You can only file for this once the separation period is complete. Without children, the separation period is typically six months. With children, the separation period is one year.



I mentioned a cavaet -- where there is danger to one spouse or to children, the threatened spouse may file for a "protective order" -- this is often a hotly constested area of divorce litgation, as a protective order gives rise to a claim of bad acting on the part of one spouse, which in turn causes significant problems in the determination of separation, spousal support, custody and child support.

Most divorces these days are due to irreconcilable differences. When this form of divorce is pursued, both spouses are considered neutral, and neither is given any particular preference in the handling of property, support, etc. Each is equal. However, if one spouse is a bad actor -- for example, committed adultery, or stole money, had a gambling problem, was a habitual drunkard, etc. -- then the court will skew the property, support, and custody issues more in favor of the innocent spouse. This is another area of hotly contested divorce litigation (see last paragraph).

As you consider divorce and the steps involved, give consideration to the sample below. The sample is a separation agreement. There are plenty of self-help clinics and forms. But remember...one mistake here can really screw up your future for a very long time. The cost of an attorney at the early stages can save you untold thousands in years to come.

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SEPARATION AGREEMENT SAMPLE


Before continuing with this document, please read and acknowledge the following: _____/_____ (initial) This is an important legal document. By signing below, you agree that you have thoroughly and carefully reviewed the contents of this Agreement. Each party expressly acknowledges that he/she has had the opportunity to consult with consul of his/her choice. _____/_____(initial) Each party has three days from the time the document is signed to withdraw consent to this Agreement without penalty. If so withdrawn, the Separation Agreement becomes void and negotiations between the parties will begin anew.

This AGREEMENT is made between XXXXX and XXXXX, Husband and Wife, to determine all property rights, including property and debt distribution, between them.

The parties to this Agreement represent the following:

1. They were married on XXXX in Fairfax, Virginia.
2. Irreconcilable differences have arisen between the parties and they are now living separate and apart.
3. There are no minor children of the marriage, either by birth or adoption, and the Wife is not pregnant.

4. The parties intend this agreement to be a full and complete settlement of their rights, one to another, as to the duty of support to one another now or in the future, any rights of inheritance from one another, and any rights to any interest in or to any property of the other, whether acquired before, during, or after marriage, or other rights or benefits that may arise from the marital relationship.

The parties therefore agree as follows:

ARTICLE ONE
Separation

Each party shall hereafter live separate and apart from the other, and neither shall annoy, molest, interfere with or harass the other in any way or manner, either directly or indirectly.

ARTICLE TWO
Spousal Support

/_____(initial) Neither party shall pay to the other any amount, either in installments or in a lump-sum, for spousal support. This provision may not be modified.

ARTICLE THREE
Division of Property and Debts

  A. Real Estate
The parties own one rental property located at XXXXX , Herndon, VA 20170. The property was purchased during the course of the marriage. The deed and the mortgage are in the name of the Wife. Husband renounces any and all claims, for himself, his heirs, his estate, and his agents, now and forever, on said property. He relinquishes any rights or entitlements to said property now and forever, agreeing to sole and complete possession by the wife of the same. This includes but is not limited to any right to ownership, lease, rents, or any form of utilization, control or direction. Husband shall not be entitled to any payments from said properties, nor any debts accrued thereon, either in the past, the present, or the future. Wife agrees to assume any and all outstanding liabilities and indemnify Husband from any future costs associated with the property.

B. Household Goods, Furnishings and Personal Property
Each party shall keep any households goods, furnishings, and personal property now in that party's possession, free of any claim of the other.
C. Motor Vehicles
Each party shall retain title to and possession of all motor vehicles, boats, campers and other titled or registered conveyances, now titled or registered in that party's name. The party retaining the vehicle shall be solely responsible for any debt on or expenses regarding that vehicle and indemnify and hold harmless the other party from any and all liability associated with the motor craft.
D. Bank Accounts and Employee Benefits
Each party shall retain any bank or investment accounts in that party's name as well as any employee benefits, including pension, retirement, stock ownership, 401(k) or other employer plans, free and clear of any claim of the other. There are no joint accounts to be closed and/or divided.
E. Life Insurance Policies
Each party shall retain any life insurance policies owned by that party, and the parties give up any interest in being named beneficiaries of the other policies.
F. Debts
Each party shall pay those debts in the parties name, and neither party shall incur any debts in the name of or on the credit of the other party. There are no joint debts.

ARTICLE 4
Court Costs

The Court costs will be paid by Husband. Any legal fees will be paid by the party incurring the fees without recourse to the other spouse.

ARTICLE 5
Complete Settlement<

______/______ (initial) This agreement is a full and complete settlement of all spousal rights and property claims, inheritance, descent and distribution, allowance for support and maintenance, exemption from administration, all rights as surviving spouse, heir, legatee, and next-of-kin in the estate of the other, and all rights to administer estate of the other, and in all property rights that each now has, or may acquire in the future, except as specifically agreed to in this Separation Agreement. This Agreement shall be binding on other parties heirs, administrators, executors, and assigns.

ARTICLE 6
Incorporation Into Decree

It is agreed and understood that this agreement shall not constitute consent by either party to a divorce or dissolution of marriage; however, in this event that either party files for divorce action or dissolution proceeding is begun, the parties agree that this entire Agreement shall be disclosed and presented to the Court in that proceeding or in any such proceeding now pending, with the request that it shall be determined to be fair, just, and proper, and that this Agreement and all its terms and provisions be adopted by that Court, and made part of the order of that Court in its final decree of divorce or dissolution.

ARTICLE 7
Implementation of Agreement

Except as otherwise provided in this Agreement, each party shall upon the signing of this Agreement, deliver to the other party, or permit the other party to take possession of, all items of property to which each is entitled. Within 14 days after the filing of the decree of divorce or dissolution that incorporates this Agreement, whether modified or amended, each party shall execute or sign and shall deliver any and all deeds, titles, certificates, or other documents necessary to carry out execution of this Agreement. Auditor, county record, clerk of courts, and any other public/private officials are hereby authorized and directed to accept this Agreement, or a properly certified copy of it, in lieu of the document regularly required for such conveyance or transfer.

  ARTICLE 8
Full Knowledge and Disclosure

____/____ (initials) Each party acknowledges that he/she has read all the terms and conditions of this Agreement and understands all the terms.
Each party further represents that he/she has made a full and honest disclosure of all assets and liabilities, earnings and beliefs, so that the other party could take such representations into account while negotiating this Agreement. Each party further represents that he/she is satisfied with the disclosure made by the other party.

ARTICLE 9
Modification of Agreement

This Agreement may only be modified in writing. Any modifications must be signed by both parties. No waiver or breach of any one term shall be considered a waiver of any other duty or right under this Agreement, including and subsequent breach or default of a similar nature.

ARTICLE 10
Integration

This document is fully integrated and supersedes any other Agreement on the same topic. Further, there are no other considerations or modifications of this Agreement outside the bounds of this document; the Separation Agreement is fully integrated.

  IN WITNESS WHEREOF, the parties have signed this Agreement before the witnesses and on the date set forth below:

Signed in the presence of:

Signature of witness to Husband Signature of Husband

Signature of witness to Husband Printed Name of Husband

Date Signed

Signature of witness to Wife Signature of Wife

Signature of witness to Wife Printed Name of Wife

Date Signed

------------------- Divorce is a very serious matter. You need an experienced litigation firm to ensure your rights are protected. We always try to work witht he other side -- however, if a vigorous engagement is required, Hanover Law is up to the task. CALL US before you agree to anything.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us

1 comment:

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divorce is still not been passed in our country but would it be really beneficial? to whom would it be beneficial?

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