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Hoge Partners, PLLC

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Settlement Agreements

Every divorce should culminate in the reaching of a settlement of each party's claims and an equitable distribution of the parties' joint assets as well as division of their responsibilities insofar as any children and/or debts are concern.  If the parties absolutely cannot reach a settlement, then their case is probably headed for trial, which is expensive and which seldom ends up the way either party desires.

Whether the settlement is called a "Property Settlement Agreement", a "Marital Settlement Agreement" or a "Legal Separation Agreement", the end result should be the same.  Though matters affecting the children can be addressed separately in a Parenting Agreement, both Agreements should be incorporated by reference into the Decree of Dissolution.  This means the terms of the parties' agreements are made a part of the Decree and are therefore enforceable by the Courts.

Generally speaking, such settlement agreements should include a full recitation of how the parties intend to resolve or have resolved all of the following key issues:

  • Confirmation of full financial disclosures (usually done through the exchange of Verified Disclosure Statements, extensive notarized disclosure required in all Kentucky Family Courts)
  • Restoration of Non-Marital Property
  • Division of Joint Personal Property (particularly household furniture, furnishings, appliances, decor items, etc.), and including:
  • Division or restoration of personal property -- Automobiles, Motorcycles, Boats, RVs, etc. Stocks and Bonds Pension/Retirement Benefits, IRAs, etc. Bank Accounts Investment Accounts (money market accounts, CDs, etc.) Life Insurance Policies Business Interests, Stock Options, Copyrights, Inventions, etc.
  • Division of Joint Real Estate (residential, commercial, agricultural, investment, etc.)
  • Entitlement to COBRA Insurance Benefits (Consolidated OmniBus Reconciliation Act of 1986)
  • Filing of current and future tax returns; division of refunds; responsibility for paying taxes owed
  • Responsibility for Debts (jointly and separately)
  • Entitlement to or Waiver of Maintenance (a/k/a "alimony")
  • Responsibility for Court Costs and Attorney Fees
  • Acknowledgment of Tax and Legal Advice
  • Mediation of Future Disputed Issues
  • Bankruptcy (how a future bankruptcy may affect one's obligations under the agreement)
  • Release Provisions, Mutual Waivers, etc.

The issues involving the children, if any, can be resolved under the above settlement agreement or in a separate Co-Parenting Agreement.  That type of document generally includes resolution of the following parenting issues:

  • Custody -- Temporary or permanent; sole, joint or shared?
  • Residential Custodian -- Defined or not defined?
  • Visitation -- Supervised or liberal?
  • Parenting Schedule -- Specific or general?
  • Division of Holidays -- Per the weekly/monthly schedule or as specified by agreement?
  • Grandparent Visitation -- Will either set of grandparents have defined visitation rights with the children before or after the parents' deaths?
  • Transportation -- Who is responsible for transport the children for changes in parenting time?
  • Exchange of the Children:
    • Where?
    • When?
    • Under what circumstances?
    • Who may participate in exchange? (i.e., can Grandma or Grandpa pick up or deliver the child if Mom or Dad is busy?)
  • Vacations -- Will contact be permitted with the non-vacationing parent?  How often?  At whose expense?
  • Decision-making Authority (custody):
    • Shared or joint?
    • To include:
      • Education?
      • Religion?
      • Health issues (medical, dental, psychiatric, etc.)?
      • Extracurricular activities?
  • Designation of a Primary Residential Custodian?
  • Education:
    • Are your children going to attend public or private school?
    • Who is responsible for tuition, books, school supplies, uniforms, etc.?
    • Who is responsible for transportation to and from school when the children aren't with their primary parent?
  • Daycare:
    • Will younger children attend in daycare?
    • Where?
    • Who will pay for it?
    • Who will have the right to drop them off and pick them up?
  • After-School Care:
    • Where will the school-aged children go for before-school and after-school care?
    • Who will pay for it?
    • Who can pick them up?
  • Access to Records -- School, medical, etc.?
  • Input with Educators -- Freedom to attend parent-teacher conferences?
  • Other Access to Child -- To include e-mail, web-cam, telephone, cell phone, etc.?
  • Tax Deduction -- Which parent will claim the children as dependents and when?
  • Control of Children's Finances
  • Conduct of the Parents -- No disparaging the other parent, no using the children to convey "adult" messages between the parents, etc.

The bottom line is that a cookie-cutter settlement agreement is not going to properly address all of the issues in your divorce.

Be sure that the agreement you sign adequately and satisfactorily covers all of these important issues.

Remember, if you do not understand the terms of the agreement offered to you, DO NOT SIGN IT until you understand every provision!