Really bad property settlement agreement revisited
June 29, 2011 Leave a comment
Blogger YourLiesHaveLies commented and added a few suggestions.
So what did I tell my client about the PSA? Easy…..Throw it in the garbage and start with a blank piece of paper. It is better to do something right the first time than to try to correct something done wrong. My client then asked exactly what was wrong. I identified the errors we discussed in the first post, along with those from the comments and added the following:
- Alimony is not addressed. If there is no alimony to be paid and the other party waives it, the PSA needs to specifically state that any claim to alimony is waived by both parties.
- Medical care expenses of the children are not addressed and there is now way to read the PSA to determine which parent is responsible for insurance or costs not covered by insurance. For that matter, the children are not even named or identified by sex in the PSA.
- There is no provision to address Uniform Chancery Court Rule 8.06 (d). A simple reading of the rule demonstrates that this is mandatory (“Every order respecting custody or visitation should contain a provision incorporating the terms and requirements of sub-paragraphs (a)(b) and (c) above”).
- There is no visitation schedule. If you and your wife do not agree on visitation at a later date, how is the Court supposed to determine what visitation has been agreed upon? Quite simply, the Court cannot because it hasn’t been addressed.
- There is no provision regarding retirement accounts. If you have an account, you need to make sure the PSA says that you retain that account and she makes no claim of ownership to it.
- There is no provision about who pays the attorney or court costs. Get it in writing or you could be expected to pay for her attorney.
- There is no provision about prior or future income taxes. If the IRS comes knocking on your door about something she has filed wrong, do you want to pay for it? I doubt it, so make sure it is covered in the PSA. Likewise, there is no provision about who gets to claim the children as deductions for income tax purposes. If you both claim them, eventually the IRS will audit both of you and one of you will be paying penalties with interest. Get it handled now so there are no problems later.
- A property settlement agreement should be signed by both parties and notarized.
- College expenses of the children are not addressed. Typically this is addressed in the PSA and shared by the parties in some way.
- The vehicles owned by the parties are not identified and it is not stated which of you own what vehicle.
There are other errors, but I think my client got the gist of why he shouldn’t sign the documents.