Fillable Printable 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

you need 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 general format 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

want to 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

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, particularly in 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.

4. Medical Support for the Children -- Sections 4(a) and (b) of

the sample agreement 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

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

covenants and 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

another location agreed upon by the parties, at such times as the

parties may mutually agree.

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 visit with 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.

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 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.

(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

within ten (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 Virginia Department 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

maintain medical 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.

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.

non-custodial parent any information received concerning parent-