CHECKLIST OF ISSUES FOR TRIAL OR
SETTLEMENT AGREEMENT IN DIVORCE AND SEPERATION CASES
§
"Joint custody" means joint
legal custody, joint physical custody, or both joint legal custody and joint
physical custody. In making an order for
joint custody, the court may order joint
legal custody without ordering joint physical custody.
"Joint
legal custody" means both parents have equal rights and responsibilities
for major decisions concerning the child, including the child's education,
health care, and religious training; provided, however, that the court may
designate one parent to have sole power to make certain decisions while both
parents retain equal rights and responsibilities for other decisions.
·
If child support is an
issue in my case the Child Support Guidelines have been explained to me and I
have received a copy of them
Children
-------- --------------------------------
1 17
percent to 23 percent
2 23 percent to 28 percent
3
25 percent to 32 percent
4
29 percent to 35 percent
5 or more 31 percent to 37 percent
SPECIAL CIRCUMSTANCES
____ 1. Ages of the children.
____ 2. A
child's extraordinary medical costs or needs in addition to accident and
sickness insurance, provided that all such costs or needs shall be considered
if no insurance is available.
____ 3.
Educational costs.
____ 4. Day-care costs.
____ 5. Shared physical custody arrangements, including extended
visitation.
____ 6. A party's
other support obligations to another household.
____ 7. Income that should be imputed to a party because of suppression of
income.
____ 8. In-kind income for the self-employed, such as reimbursed meals or a
company car.
____ 9. Other
support a party is providing or will be providing, such as payment of a
mortgage.
____ 10. A
party's own extraordinary needs, such as medical expenses.
____ 11.
Extreme economic circumstances including but not limited to:
____ (A) Unusually high debt
structure; or
____ (B) Unusually
high income of either party or both parties, which shall be construed as
individual gross income of over $75,000.00 per annum.
____ 12. Historical spending in the family for children which varies
significantly from the percentage table.
____ 13. Considerations of the economic cost-of-living factors of the
community of each party, as determined by the trier
of fact.
____ 14. In-kind contribution of either parent.
____ 15. The income of the custodial parent.
____ 16. The cost of accident and sickness insurance coverage for dependent
children included in the order.
____ 17.
Extraordinary travel expenses to exercise visitation or shared physical
custody.
____ 18. Any
other factor which the trier of fact deems to be
required by the ends of justice
·
After a final order is entered in my case,
child support may be revised upon petition filed by either former spouse
showing a change in the income or financial status of either former spouse or
in the needs of the child. No petition may be filed within a period of two
years from the date of a final order on a previous petition by the same
former spouse
·
It is possible to provide by agreement
for the option of automatic periodic reviews or increase in child support.
·
Child
support may be paid directly to the recipient or through the court and may be
made directly by the payor through an employer income
deduction order.
·
Failure
to pay child support subjects the payor to a possible
contempt action as well as garnishment of wages and other collection actions
but it is up to the recipient of the child support to take such legal action.
·
Other categories of child support include
activity expenses and private school expenses.
·
Child
support is not tax deductible by the payor
·
Child
support continues until the child becomes 18 years of age, dies, marries, or
otherwise becomes emancipated, except that if the child becomes 18 years of age
while enrolled in and attending secondary school on a full-time basis, then
such support shall continue until the child completes secondary school,
provided that such support shall not be required after the child attains 20
years of age.
·
I understand that federal law gives the custodial parent the
right to enroll the child in the non custodial parents
health plan without the noncustodial parent’s
approval and the noncustodial parent can be forced to
pay the premiums through an automatic payroll deduction.
·
Possible entitlements to
·
Lump Sum alimony payments- consult a
CPA or tax attorney for tax consequence- usually not able to be deducted by payor and not taxable to receiver
·
Proof of
adultery can be a complete bar to alimony to that spouse receiving alimony in a
divorce or separation.
·
Indefinite
periodic alimony may be revised upon petition filed by either former spouse
showing a change in the income or financial status of either former spouse. No
petition may be filed within a period of two years from the date of a final
order on a previous petition by same former spouse
·
It is possible to state in a settlement
agreement that the alimony provision may not be modified later by one or both
former spouses
·
Alimony in
lump sum of money or property even if paid over a period of time cannot be
modified.
·
Subsequent to a
final judgment the voluntary cohabitation of of the
alimony recipient with a third party may be grounds to modify the alimony
award.
·
Unless the
agreement provides otherwise alimony terminates upon the death of either party
or upon the remarriage of the recipient.
·
If
alimony is not awarded at time of divorce it cannot be awarded afterward.
·
My
spouse and I are each entitled to keep our separate estates, that is, all
property that we brought into the marriage to the extent it was already paid
for as well as all inheritances and gifts we have received from third parties.
However ones separate estate may be used for alimony purposes.
·
I
understand that I am entitled by law to an equitable distribution of all
property and assets accumulated by my spouse and me whether separately or
jointly during the marriage. The following categories of property have
specifically been reviewed with me:
1. Automobiles
motorcycles boats
2. Household
furniture, appliances, contents and personal items
3. Marital
residence.
4. Investment
in real estate
5. Liquid
Assets – all cash accounts, IRA’s, CD’s etc
6. Retirement
benefits
7. Lump
sum payments of money as part of property settlement
8. In
dividing property court may consider conduct of parties
8. Debts
§
Who is going to pay what debt
9. Bankruptcy
§
I understand that if my spouse files
bankruptcy and my spouse was to pay me pursuant to a court order a lump sum of
money (or transfer other property to me) in the form of a property settlement
(as opposed to alimony) I may lose this money or property in the bankruptcy,
regardless of any protective language in the final agreement or decree.
§
I am
aware that my spouse may file bankruptcy and the I may end up being responsible
for joint debts that my spouse was ordered to pay in the divorce or separation
order, regardless of any protective language
10. Taxes
§
Liability
for previously filed tax returns
§
Filing
jointly for the last possible year-returns and payments
§
Dependency
exemptions
IRC 151 (c) and IRC 152 (e)
§
Allocation
of itemized deductions-year of divorce and after
§
Inquire
into tax basis on all real property for capital gain purposes
§
Private
parties cannot file joint tax returns for the year in which divorce occurs
§
Client
has been advised to obtain tax answers from CPA or tax attorney.
11. Life insurance
May be used to guarantee support
May use an insurance trust to fund alimony
Change beneficiary if necessary
Relinquishment of interest as beneficiary
After case is over client should remember to
change beneficiaries on 401 k plans, life insurance, wills etc
12.
If provided in court order alimony or
property settlement may be a charge against the estate of the party who is
liable
13.
14. Possible need for medical insurance under
COBRA for spouse or children
15
Attorney fees-Fees are
awarded in the discretion of the court unless agreement is reached
16. Parties may have to execute other
documents in order to carry our the terms of a settlement agreement or final
court order such as a deed, bill of sale, power of attorney for auto,
certificate of assumption on house and transfer of homeowners insurance
17. Client is advised that it is best to obtain
a title examination on all real property awarded to client prior to trial or
reaching a settlement. Kathleen McGillick does not
provide this service and special arrangements would have to be made to have a
title examination performed.
18. It is possible to provide by agreement
that future disputes will be mediated.
19. Eligibility for social security and
military benefits if married at least 10 years
20. A settlement agreement may affect the
right to receive certain public benefits such as AFDC, food stamps, Medicaid,
Social Security and SSI
21. I understand that a final decree of
divorce will void any last will and testament I may have made prior to such
divorce unless my will specifically provides that it was made in contemplation
of divorce and shall survive such an event.
22. I understand that
23. Before my case is settled or otherwise
adjudicated I have the right to seek mandatory or elective mediation and the
mediation procedure has been explained to me. Before I proceed to a final
hearing Mediation is required.
24. In the event I want to change my married
name to a former or maiden name I understand that it can be done in connection
with my divorce with no extra filing fee provided I tell my attorney about it
prior to the final order being executed. If it is not done at that time there
is an extra filing fee and attorney fee involved.
25. I know I should remove my spouse as a
beneficiary from any and all insurance policies, retirement pans and other
accounts if I desire as long as my divorce decree does not provide otherwise.
I
HAVE REVIEWED ALL OF THE ABOVE AND I AM SATISFIED WITH THE INFORMATION
PROVIDED. I HAVE ASKED WHATEVER QUESTIONS I HAVE HAD AND I UNDERSTAND THE
EXPLANATION.
_________________________
CLIENT