Checklist of Issues to Consider During Mediation
Checklist of issues to consider during mediation
1. Division of Assets:
___________ Real estate
___________ Pension/Retirement plans
___________ Stocks, bonds, annuities
___________ Bank accounts
___________ Vehicles (autos, boats etc)
___________ Personal property (furniture, dishes etc)
___________ Business
2. Issues surrounding division of property
Is one party retaining real estate of will it be sold?
Will you need an appraisal of the real estate?
How will you divide the personal property? Does it need to be appraised?
Do the pensions need to be appraised?
What date will you use as cutoff for values of property?
Do you still have joint bank accounts? At what point will you separate your bank account?
What will guide the division of property- a desire to achieve a certain percentage (50/50, 60/40 division etc. or a desire to have each party keep certain assets regardless of ultimate percentage?
Is either party expecting a significant inheritance and is that a factor which you wish to consider in the division of property?
Are there any assets which either of you wish to not consider in the division (for example- inherited assets or assets accrued prior to the marriage or post-separation)
3. Parenting
__________ Legal custody- joint or sole
__________ Physical custody- shared or sole
__________ parenting schedule
__________ holidays
__________ vacations
__________ summer
__________ birthdays
_________ reviews
__________ transportation
__________ removal from commonwealth
__________ communication and exchange of records
4. Support
__________ child support
__________ amount
__________ duration
__________ emancipation provision
__________ extraordinary expenses
__________ college and private school expenses
__________ uninsured medical/dental expenses for children
__________ review of child support
5. Alimony
________ Alimony or waives of alimony
________ If waiver, waiver of past present and future
________ If alimony, duration and amount
________ Tax ramifications of alimony
6. Health insurance
________ Who carries health insurance
________ Family plan or individual
________ Cost of insurance
________ Will insurance be available to ex-spouse post divorce, cost
________ Does other spouse have insurance available, cost
7. Life insurance
________ amount of life insurance
________ term policy- what is term and cost
________ whole life/universal- cash value
________ should life insurance continue post divorce for how long?
________ who owns policy and who is beneficiary post divorce?
8. Taxes
_________ How will taxes this year be filed
_________ Who claims dependency exemptions
_________ Who claims head of household
_________ Any tax liabilities?
9. Liabilities
_________ Liabilities joint or individual
________ Who is responsible for what liabilities
________ Can other spouse be removed as obligor
10. Merger/survival
Checklist for Divorce Separation Agreements
Checklist for Divorce Separation Agreements
This checklist is intended to be a guide that is comprehensive and specific. Not every Separation Agreement will include provisions on each of the listed points.
I. IDENTIFYING DATA
A. Place for Names of Parties
B. Date/Place of Marriage
C. Name(s) /Date(s) of Birth of Children
II. CUSTODY
A. Legal Custody
B. Physical Custody
C. Living Arrangements/Parenting Plan (including weekdays, weekends, birthdays, transportation, holidays, and vacations)
1. Current
2. Future Modification / Periodic Review
3. Each parent's access to kids when they are with the other parent
D. Relocation
E. Travel Outside Massachusetts
F. Notification of illness
G. Access to Children's Records
H. Access of other relatives to children
I. Emergency decisions
J. Parental Cooperation/Non-Disparagement
K. Religion and Religious Training
L. Contact of children with parents' new partners
III. CHILD SUPPORT
A. Support Amount
1. Initial Amount
2. Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines)
3. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.)
4. Allocation of child care cost
5. Cost of vacations
B. Duration (including definition of emancipation, and effect of death of payer)
C. Time of Payment
D. Periodic Review / Future Modification
1. If more than one child: effect of emancipation of older child(ren) on child support
2. Effect on child support when child attends college
3. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
4. Renegotiation (without specific method for adjustment)
E. Tax Effect
1. Not taxable to recipient
2. Not deductible by payer
F. Dependency Exemption(s)
G. Children's Accounts/Investments
IV. EDUCATION
A. Definition of education (college/private elementary or secondary school)
B. Definition of educational Expenses (e.g. tuition, room & board, application fees, travel home, books, computer, etc.)
C. Apportionment of expenses (children's funds, work, scholarships, parental contributions)
D. Involvement of parties in process of choosing college to which applications will be made
E. Involvement of parties in financial aid applications
V. ALIMONY
A. Waiver of future alimony
B. Amount
C. Duration and reasons for termination
D. Time of Payment
E. Periodic Review/Future Modification
1. Calculation method
2. COLA
3. Renegotiation (without specific method of adjustment)
F. Tax Effect
1. Tax deductibility
2. Tax reporting for inclusion of income
G. Effect of Alimony Termination on Child Support Obligation
VI. HEALTH AND DENTAL INSURANCE FOR CHILDREN
A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums and co-payments
F. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy)
1. Allocation
2. Approval
G. Loss of coverage / Alternate coverage
VII. HEALTH AND DENTAL INSURANCE FOR SPOUSE
A. Policy in Effect
B. Obligation of coverage
C. Duration of obligation
D. Notification of change in policy
E. Responsibility for premiums:
1. COBRA costs, if relevant
2. Upon remarriage of either spouse
F. Uninsured medical/dental expense
G. Loss of coverage/Alternate coverage
VIII. LIFE INSURANCE
A. Identification
B. Allocation of cash value (if whole life)
C. Amount (death benefit)
D. Ownership
E. Responsibility for payment of premium
F. Beneficiary (optional establishment of trust)
G. Future obligations:
1. Duration, adjustment of amount
2. Documentation/Option to review policy
3. Default provision (claim on estate)
IX. MARITAL HOME
A. Property address/county/state/owners/form of ownership
B. Use and Possession
C. If Joint Ownership:
1. Type (tenants in common; joint tenants)
2. Responsibility/Liability for Expenses
i. Present/Future mortgages (including equity lines)
ii. Real Estate taxes
iii. Homeowner's insurance
iv. Maintenance
v. Capital Improvements
vi. Repairs (major and minor)
vii. Condo fees (if relevant)
3. Division of rental income (if any)
4. Tax Consequences: allocation of tax payments and depreciation, other deductions
5. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership)
6. Indemnification
D. If Transfer to Third Party:
1. Timing of transfer or sale
2. Allocation of costs of preparation for sale (including repairs)
3 Appraisal and setting asking/selling price
4 Definition of proceeds
5 Division of proceeds (including whether payer of mortgage gets credit for payment of principal)
6. Capital Gains tax consequences
E. If Transfer to Spouse:
1. Determining price (mechanism for including any deductions from equity, e.g. equivalent of realtor's fee, capital gains taxes, title V or other necessary repairs)
2. Time of transfer
3. Method, timing of payment
4. Responsibility of sole owner for expenses after transfer
5. Does non-owner stay on mortgage? If so, indemnification provision
6. Tax consequences (e.g. transferee liable for capital gains taxes)
7. Homestead
X. ADDITIONAL PROPERTY
A. Pension/Retirement
1. Description of plan(s)
i. Contributory plan
ii. Defined benefit plan
2. Valuation of plan, who pays for valuation
3. Transfer provisions
4. Division
5. QDRO requirements, who pays for QDRO preparation
B. Securities (stocks, bonds, stock options)
1. Identification
2. Balance of account(s)
3. Ownership
4. Division, buy-out, or other disposition
5. Restrictions on voting, sale
C. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit)
1. Balance of account(s)
2. Ownership
3. Division or other disposition
D. Family Business/Closely-held Corporation
1. Identification
2. Description
3. Form of ownership (if less than 100%, amount of ownership)
4. Value, and who pays for valuation
5. Division, buy-out, or other disposition
E. Real Estate (other than marital home)
1. Description of property
i. Ownership form
ii. Usage
iii. Rental
1. Right to income
2. Obligation for expenses
3. Tax consequences
F. Partnerships and Limited Partnerships
1. Identification
2. Value
3. Division, buy-out, or other disposition
G. Pending Legal Actions
H. Tangible Personal Property
1. Possession and storage
2. Division; Provision for removal
I. Trusts
1. Identification
2. Present or future interest in trust, nature of interest
3. Value
4. Division, trade-off, or other disposition
J. Inheritances, actual or potential
1. Identification
2. Present or future interest in inheritance, nature of interest
3. Value
4. Division, trade-off, or other disposition
K. Vehicles
1. Make, model, year
2. Who holds title
3. Ownership upon divorce
4. Responsibility for Loan/Hold Harmless
5. Cooperation regarding applicable transfers
L. Intellectual Property, including royalties, copyrights, trademarks, patents, etc.
M. Cemetery Plots
N. Frequent Flyer Miles
O. Pets
P. Photo Albums, family videos
Q. Waiver of rights to any property purchased by spouse after agreement is executed but before judgment of divorce becomes final
XI. TAXES
A. How to file for last year of marriage
B. Cooperation if joint filing
C. Use and reporting of available deductions
D. Division of refund or liability
E. Contribution (if joint)
F. Indemnification
G. Cooperation for audit/investigation of prior years' tax returns
H. Capital gains tax consequences for all assets and/or capital loss
I. Adjustment for change in tax laws
XII. DEBTS AND LIABILITIES
A. Type of debt
B. Allocation of responsibility for debts, including debts incurred after agreement is executed but before the judgment of divorce becomes final
C. Indemnification
XIII. ADDITIONAL PROVISIONS TO BE INCLUDED
A. Warranties about full disclosure of finances
B. separate and independent legal advice
C. Procedure for future disputes (mediation clause)
D. Responsibility for payment of mediation fee/legal fees/filing fees
E. Privacy clause
F. Debt payment designated as support and maintenance
G. Promise of no past and future contraction of debt in the other's name
H. Waiver of right to take against will
I. Waiver of right to after-acquired property
J. Right to dispose of property by will
K. Mutual release of all claims
L. Entire agreement (no oral or extrinsic agreements)
M. Acknowledgement of fairness and reasonableness of provisions
N. Massachusetts contract.
O. Severability; the unenforceability of a provision shall not affect validity of other provisions
P. Waiver of provision not waiver of subsequent breach/default of provision
Q. Modification, amendment or waiver in writing to be valid
R. Forever binding and conclusive on heirs, executors, assists
S. Indemnification for breach by breaching party or his/her estate survives death
T. Effect of Bankruptcy
U. Notarization
Note: This checklist was originally published by the Massachusetts Council on Family Mediation
