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Fillable Printable Sample Separation and Property Settlement Agreement

Fillable Printable Sample Separation and Property Settlement Agreement

Sample Separation and Property Settlement Agreement

Sample Separation and Property Settlement Agreement

SAMPLE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
This sample separation and property settlement agreement is
NOT intended for use in all cases. It is NOT a fill-in-the-blank
type of form that you can go through quickly. Instead, it is
simply a sample containing the types of provisions that may be
found in many such agreements. Some of these provisions may be
inappropriate in your case, and there may be other provisions that
youneed to include in your case. YOU WILL HAVE TO PREPARE YOUR
OWN AGREEMENT.
If you use this sample agreement as a model for preparing an
agreement in your case, you will need to make the agreement fit the
particular facts of your situation. For some issues, such as
visitation or division of property, the sample agreement contains
several different options that you might choose from. An actual
agreement would not include all of these options, but would include
only those provisions that fit the situation.
Make sure that your agreement does not include provisions that
are inconsistent with each other, or provisions that you do not
want to agree to.
If you follow the generalformat of the sample agreement, you
will probably need to re-number at least some sections to fit your
situation. You will also need to make sure the wording of your
agreement fits your situation (for example, if you have only one
child, you will need to change "children" to "child"). Read
through your agreement to make sure it makes sense to you.
The material in brackets - [ ] - is not part of the agreement
itself, and should not be included in any agreement that you
prepare for your case. The material in brackets is included in the
sample only to explain the sample.
Some provisions in the sample agreement have blanks in them,
and most of these provisions show how the blanks could be filled
in. If you use provisions from this sample, make sure that you
fill in the blanks properly, in accordance with the facts of your
own case and what you want your agreement to say.
If you use this sample as a model in preparing an agreement in
your own case, use only those provisions that apply and that you
wantto include. If the sample does not have a provision that
deals with a situation in your case in the way that you want to
deal with it, you will have to write up your own provision for that
situation. You can and should revise the provisions of the sample
to fit your situation.
West Virginia Legal Services Plan is willing to review
settlement agreements for participants in its pro se divorce
workshops. If you wish for one of our lawyers to review your
agreement, you should call our office for an appointment after you
have prepared the agreement the way you want it, but before you or
your spouse have signed it.
YOU WILL BE RESPONSIBLE FOR MAKING SURE YOUR AGREEMENT SAYS
WHAT YOU WANT IT TO SAY, SO MAKE SURE YOU UNDERSTAND EVERYTHING
THAT YOU INCLUDE IN THE AGREEMENT.
Section-by-Section Explanation of Sample Agreement
1.Custody -- After the introductory paragraphs, the first
section of the sample agreement deals with custody. If you have
children with your spouse, any settlement agreement in your case
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should say who will have custody of the children. There are two
options set out in the agreement -- the first is for use where one
parent has all the children, and the second is for use where each
parent has custody of one or more of the children. There are
additional requirements for joint custody cases, and West Virginia
Legal Services does not deal with joint custody in its pro se
workshops.
2.Visitation
-- There are many different provisions included in
the sample agreement. You will not need them all. In general, you
can agree to (a) broad and liberal visitation, without setting out
specific times for visits, (b) visitation restricted to a
particular place, (c) supervised visitation, (d) no visitation, or
(e) specific visitation. There are many different ways of dealing
with each of options -- those included in the sample as 2(a), 2(b),
2(c), 2(d) and 2(e) are only examples of how an agreement could be
drafted.
Ordinarily, a non-custodial parent will be entitled to
visitation of some sort unless he or she has severely abused the
children or presents a serious risk of harm to them. Restricted or
supervised visitation - 2(b) and (c) - may be appropriate where
there is some fear that the non-custodial parent will mistreat or
neglect a child, particularlyin the case of a younger child. Non-
specified "broad and liberal visitation" - 2(a) - may be
appropriate where you and your spouse are able to work well with
one another in arranging visits. If you are the non-custodial
spouse, it is probably in your interest to get specific visitation
with your children, - 2(e) - so that you will have a clear right to
visit with the children at particular times.
Sections 2(f) through (m) set out provisions that you may want
to consider with regard to visitation. Include only those that
make sense in your situation and that you are willing to agree to.
3.Support and Maintenance of the Minor Children
-- If you have
done a child support calculation, using the West Virginia child
support guidelines, you can use section 3(c) or (d), which include
a particular amount for child support. If you haven't done a
calculation yet, you can use 3(a) or (b), which say that support
will be based on the guidelines.
Section 3(e) or (f) can be used in those limited situations
where the non-custodial parent is not able to pay child support at
this time. 3(e) includes a requirement that the parent at least
look for work and report his or income when he or she finds work.
You should insist on this provision as a minimum
if you have
custody and your spouse is able to work.
Section 3(g) can be used if the non-custodial spouse is on
Social Security and the children receive children's benefits. If
you have custody of the children, you should not agree to this if
you believe that your spouse earns or is able to earn enough to
provide additional support for the children.
Section 3(h) can be used when each spouse has custody of one
or more of the children. Before agreeing to this type of
provision, you should make sure that you are not entitled to child
support under the guidelines. Even if each parent has one or more
of the children, the guidelines may call for one parent to pay
child support to the other.
3
4.Medical Support for the Children -- Sections 4(a) and (b) of
the sampleagreement would require one or both parents to get
insurance on the children, although (b) would require insurance
only if it becomes available at reasonable cost through one of the
parent's employer. Sections (c) and (d) deal with medical and
other costs not covered by insurance, including costs where there
is no insurance or medical card, costs for meeting deductibles, and
other costs not covered by insurance. You should consider
including provisions like these, even if your children are now
covered by Medicaid, just in case you may need them in the future.
5.Other Provisions Concerning Children
-- You may want to
consider including provisions like these if you are the non-
custodial parent and want to be informed about things that affect
your children. Even if you are the custodial parent, you may also
want to include provisions like these to encourage the other parent
to maintain ties with the children. These provisions are not
required, however, and you do not have to address these issues in
your agreement.
6.Alimony
-- If you and your spouse both agree to give up any
right you may have to alimony, you can use section 6(a) only,
filling in the first blank with "Both Husband and Wife". If your
agreement involves the payment of alimony, you will need to set out
when the alimony is to end. If you give up your right to alimony
now, you cannot come back to court after your divorce to ask for
alimony.
7.Personal Property
-- Any property settlement agreement should
set out who gets what property. Don't forget about bank accounts
or other property. Issues about how property is divided by the
courts in divorce cases is discussed at West Virginia Legal
Services' pro se divorce workshop. If you don't understand your
rights concerning the division of property and debts, DON'T AGREE
TO ANYTHING UNTIL YOU FIND OUT YOUR RIGHTS.
If there is debt associated with any of the property, you will
need to say who is to pay the debt. The sample agreement includes
a provision showing how this could be done with a car, and that
provision could be a model for writing a similar provision for
furniture or other property being bought on credit.
8.Real Estate
-- If you and your spouse have any interest in real
estate together, or if either of you obtained an interest in real
estate while you were married, do NOT use a provision like the one
included in the sample agreement. Do NOT use this provision if you
or your spouse made payments on real estate while you were married,
whether the payments were under a land contract, a mortgage, or a
deed of trust. If you are unsure, check with a lawyer.
9.Debts
-- The sample agreement includes several different ways
that debts can be divided in a settlement agreement. Section 9(a)
can be used along with 9(b), (c) or (d). It is generally a good
idea to spell out who will be responsible for which debts.
10.Marital Home
-- If you and your spouse are still living
together,you need to decide which of you will be moving out and
when. This provision in the sample agreement doesn't deal with the
ownership of any real estate, and should not be used except where
the parties are living in an apartment or house that they are
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renting.
11.Injunctive Relief -- You can use a provision like this one if
you need an order requiring your spouse to stay away from you or to
keep from bothering you. Sometimes both spouses will agree to this
type of an order.
12.Releases
-- These provisions say that each spouse gives up his
or her right to make any claim against the property of the other,
including any right to inherit from the other. A provision like
this one is generally found in property settlement agreements in
divorce cases.
13.Miscellaneous -- These provisions say that both spouses will
cooperate with each other in carrying out the agreement and in
getting the divorce completed. They also say that each understands
the agreement and thinks that it is fair. Provisions like these
are included in most property settlement agreements in divorce
cases.
THIS SEPARATION AND PROPERTY SETTLEMENT AGREEMENT, made
and entered into this the day of , 199 , by
and between wife's name
, party of the first
part, hereinafter referred to as "Wife," and husband's name ,
party of the second part, hereinafter referred to as "Husband."
WITNESSETH: That for and in consideration of the mutual
covenantsand agreements hereinafter set forth, Husband and Wife
covenant and agree with one another as follows:
1.Custody
Husband or Wife shall have the complete care, custody
and control of the minor children of the parties, namely names
of children .
[-OR, IF EACH PARENT HAS CUSTODY OF AT LEAST ONE CHILD-]
Wife shall have the complete care, custody and control of
names of children with mother
, minor children of
the parties, and Husband shall have the complete care, custody and
control of names of children with father
, minor children of the parties.
2. Visitation
(a) The non-custodial parent shall have the right of
broad and liberal visitation with the minor children, at reasonable
times and places and under reasonable circumstances.
(b)The non-custodial parent shall have the right of
visitation with the minor children of the parties, with such
visitation to take place at the home of the custodial parent or at
anotherlocation agreed upon by the parties, at such times as the
parties may mutually agree.
(c) The non-custodial parent shall have the right of
visitation with the minor children of the parties, provided that
such visitation shall be supervised by the custodial parent or by
a person designated by the custodial parent, until such time as the
minor children attain the age of
years.
(d)The parties mutually agree that it is in the best
interests of the minor children that the non-custodial parent shall
not have any contact with the minor children, because of unusual
and unfortunate circumstances that have arisen between the non-
custodial parent and the children. Accordingly, the non-custodial
parent shall not have any right to visit with the minor children.
(e) The non-custodial parent shall have the right of
visitation with the minor children of the parties as follows:
i. On alternating weekends from Friday evening at
7:00 until Sunday evening at 6:00.
ii. One evening per week, other than weekends, from
until .
iii. On alternating holidays. In even numbered
years, the non-custodial parent shall have the children on
President's Day, Memorial Day weekend, Labor Day weekend, and
Christmas eve, and the custodial parent shall have the children on
Easter weekend, the Fourth of July, Thanksgiving Day through the
following Sunday, and Christmas afternoon. This schedule shall be
reversed in odd numbered years.
iv.On alternating holidays, according to a schedule
to be agreed upon by the parties.
v. Wife and Husband will share the holidays with the
minor children according to a mutually agreed upon schedule.
vi. One-half of the children's vacation from school
during the Christmas season and in the spring.
vii.
weeks during the summer months, which
shall be scheduled by agreement of the parties no later than
each year.
viii. One-half of the children's summer vacation
from school.
ix. Wife shall have the children on Mother's Day and
on her birthday, and Husband shall have the children on Father's
Day and on his birthday.
x. The parties shall have the children on an
alternating basis for each child's birthday.
xi. Wife and Husband will each share a portion of
each child's birthday with the infant children.
xii. The non-custodial parent shall have the further
right to visitwith the children at such other times as the parties
may agree.
(f) During summer visitation by the non-custodial
parent, the custodial parent shall have the right to visit with the
minor children at reasonable times and places, including the right
to visit with the children on alternating weekends.
(g) The provisions of this agreement concerning holiday
and birthday visitation take precedence over the provisions
concerning weekend and other visitation, but do not otherwise
modify the visitation schedule set forth above.
(h) The parties shall schedule visitation in such a
manner that all of the children shall be in the physical care of
the same parent during such visitation, it being the intention of
the parties that all of the children be allowed to celebrate
holidays together and to spend a significant portion of the summer
months together.
(i) The parties agree that they shall each cooperate in
good faith in arranging for visitation, and that they each shall
provide reasonable advance notice of their plans that would affect
visitation.
(j) In arranging for visitation, the parties agree that
they shall take into consideration the routines and schedules of
the minor children, and that they will take into consideration the
wishes and desires of the minor children concerning visitation.
(k) Each party shall exert a reasonable effort to
maintain free access and unhampered contact between the minor
children and the other party, and to foster a feeling of affection
between the children and the other party. Each party shall permit
free and open communications between the other party and the
children, including telephone communications, during all periods
when the children are in that party's physical care. Neither of
the parties shall criticize the other in the presence of the
children, or do anything which may estrange the children from the
other party, or which may hamper the free and natural development
of the children's love and respect for the other party.
(l) All visitation shall be conducted in a peaceful and
sober manner, and in a suitable environment for the children.
(m)The non-custodial parent shall provide to the
custodial parent with notice of his/her intention to exercise
his/her right of visitation at least 48 hours in advance.
3.Support and Maintenance of the Minor Children
.
(a) Husband or Wife shall pay to Wife or Husband for
the support, maintenance and education of the minor children, a
reasonable amount of money which shall be determined pursuant to
the West Virginia Child Support Guidelines. Both parties shall
exchange within 30 days of the signing of this Agreement verified
financial statements which indicate their financial status and
which shall be submitted to the Court for determination of a
support award.
(b) Husband or Wife
shall pay to Wife or Husband for
the support, maintenance and education of the minor children, a
reasonable amount of money which shall be determined pursuant to
the West Virginia Child Support Guidelines, but not less than
per month. Both parties shall exchange within 30 days of the
signing of this Agreement verified financial statements which
indicate their financial status and which shall be submitted to the
Court for determination of a support award.
(c) Husband or Wife shall pay to Wife or Husband for
the support, maintenance and education of minor children the sum of
per month, with the first such payment coming due and
payable on the day of , 19, and with like
payments continuing on the day of each and every month
thereafter, until such time as thechildren attain the age of
eighteen years, sooner die, become emancipated or self-supporting,
or until further agreement of the parties or order of a court of
competent jurisdiction.
(d) Husband or Wife
shall pay to Wife or Husband for
the support, maintenance and education of minor children the sum of
per month, in semi-monthly installments of each,
with the first such payment coming due and payable on the day
of, 19, and with like payments continuing on the
and days of each and every month thereafter, until
such time as the children attain the age of eighteen years, sooner
die, become emancipated or self-supporting, or until further
agreement of the parties or order of a court of competent
jurisdiction.
(e) Husband or Wife
[THE NON-CUSTODIAL PARENT]
represents that he/she is currently unemployed, and the parties
therefore agree that he/she should not be required to pay any
amount [OR] should be required to pay only $----- per month for
the support, maintenance and education of the minor children of the
parties at this time. [DO NOT INCLUDE BOTH OF THE PHRASES IN THE
BLANK -- PICK THE ONE THAT FITS YOUR SITUATION.] Husband or Wife
[THE NON-CUSTODIAL PARENT] agrees that he/she shall diligently seek
full-time employment, and upon obtaining employment, he/she shall
provide an updated Financial Statement to Husband or Wife [THE
CUSTODIAL PARENT], to the Court, and to the Child Advocate's office
withinten (10) days of gaining employment. At that time, Husband
or Wife [THE NON-CUSTODIAL PARENT] shall pay to Husband or Wife
[THE CUSTODIAL PARENT] each month a reasonable amount of money,
which shall be determined in accordance with the West Virginia
Child Support Guidelines, for the support, maintenance and
education of the minor children of the parties. The support
payments required by this paragraph shall continue until such time
as the children attain the age of eighteen years, sooner die,
become emancipated or self-supporting, or until further agreement
of the parties or order of a court of competent jurisdiction.
(f)Based upon the respective incomes of the parties and
in accordance with the Child Support Guidelines promulgated by the
West VirginiaDepartment of Health and Human Resources, the parties
agree that Husband or Wife
[THE NON-CUSTODIAL PARENT] shall not
be responsible for the payment of any amount as child support at
this time, and Husband or Wife [THE CUSTODIAL PARENT] hereby
waives his/her right to child support for the minor children, to
the extent that he/she is lawfully able to do so, subject to the
continuing jurisdiction of the Circuit Court of
County, West Virginia.
(g) The minor children receive benefits from the Social
Security Administration on the non-custodial parent's account, and
the parties agree that these payments should be considered to
satisfy the non-custodial spouse's obligation to provide support
for the minor children at this time.
(h) Husband and Wife agree that each shall be fully
responsible for the support and maintenance of the children in his
or her custody, and each voluntarily waives any right that he or
she may have to contribution in the form of child support from the
other, to the extent that he or she may lawfully do so.
4. Medical Support for the Minor Children
(a) Husband, Wife or Both parties agrees to obtain and
maintain medical and hospitalization insurance on the minor
children of the parties, until such time as they attain the age of
eighteen years, sooner die, become emancipated or self-supporting.
(b) Husband, Wife or Both parties agrees to obtain and
maintainmedical and hospitalization insurance on behalf of the
minor children as a form of support if it is available to
him/her/them at a reasonable cost through his/her/their place of
employment.
(c) All reasonable medical, dental, optical,
pharmaceutical and hospitalization expenses on the minor children
not covered by any form of insurance or government assistance
program shall be divided equally between the parties, as a form of
support.
(d) Husband, Wife or Both parties
agrees to pay all
reasonable medical, dental, optical, pharmaceutical and
hospitalization expenses on the minor children not covered by any
form of insurance or government assistance program, as a form of
support.
5. Other Provisions Concerning the Children
(a) Each party shall have full access to all medical,
dental, and school records and any other records maintained on the
minor child.
(b) The custodial parent shall take the necessary action
with the authorities of the schools in which the children are
enrolled to:
i. list the non-custodial parent as a parent of the
children;
ii. authorize the school to release to the non-
custodial parent any and all information concerning the children;
and
iii. insure that the non-custodial parent receives
copies of any notices regarding the children.
(c) The custodial parent shall promptly transmit to the
non-custodial parent any information received concerning parent-
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