Things Often Overlooked in Divorce Agreements
Some of the most commonly overlooked divorce details relate to children:
Many couples fail to include comprehensive custody schedules and plans for decision-making. This leads to future disputes.
Divorce agreements should lay out child support payment procedures and cover how healthcare/childcare costs will be split.
Spelling out which parent is responsible for health insurance and noncovered medical/dental costs avoids confusion.
If college savings plans exist, divorce agreements should explain how they will be divided and used going forward.
Spousal Support Considerations
Two spousal support considerations often overlooked are:
Beyond amount and duration, agreements should define the tax treatment and termination events (like cohabitation).
Ability to modify over time
Allowing for modification due to changes in circumstances can protect both parties.
Asset Division Clauses
Key assets that divorce agreements often fail to thoroughly address include:
Define who will occupy, buy out, or sell jointly owned homes. Include refinancing requirements.
Ensure QDROs are implemented to divide 401(k)s and pensions per the agreement.
Specify divisions for existing joint accounts or plans to open new individual accounts.
For jointly owned businesses, detail valuation approaches and schedule buyouts. Define post-divorce roles.
Overlooking tax impacts of divorce agreements can create major problems, such as:
Taxable gains can result from home/property sales or 401(k) withdrawals as assets are split.
Custodial parents cannot claim child support as taxable income.
Alimony is deductible by the payer and taxable income for the recipient.
Estate Planning Changes
Finally, divorce triggers important estate planning updates, especially:
Life insurance, 401(k)s, and other accounts need revised beneficiaries.
Wills and trusts may need to be rewritten to reflect new beneficiaries, executors, and heirs.
Things often overlooked in divorce agreements for medical reasons:
- Health Insurance Coverage: Ensure clarity on the continuation of health insurance coverage for both spouses and any dependents, including who will be responsible for maintaining and paying premiums.
- Division of Medical Debts: Clearly outline how medical debts incurred during the marriage will be divided between the spouses, including any outstanding bills or obligations.
- Allocation of Future Medical Expenses: Determine how future medical expenses will be handled, especially if one spouse requires ongoing treatment or care, including provisions for sharing costs or establishing a medical fund.
- Healthcare Decision-Making: Establish provisions for healthcare decision-making in case of incapacity, such as medical powers of attorney or directives, to ensure that both spouses’ wishes are respected.
- Consideration of Changing Health Status: Acknowledge the potential for changes in health status or medical needs over time and include provisions in the divorce agreement to address these eventualities, ensuring its long-term viability and relevance.
Divorce agreements seem straightforward on the surface, but critical details related to children, spousal support, asset division, taxes, and estate planning often get overlooked. Ensuring agreements thoroughly address these complexities saves significant time, money, and emotional drain down the road if disputes arise over ambiguous clauses.
1.Can we use the same lawyer to draft our divorce agreement?
No. Each spouse should have their own independent legal counsel to avoid conflicts of interest. Beware of attorneys rushing unrepresented parties into one-sided agreements.
2.What if our situations change after the divorce agreement?
Well-drafted agreements will include contingencies allowing for modification of support, asset division, etc based on major life changes like job losses.
3.Is an online divorce form service good enough?
Rarely. Online forms likely won’t cover common oversights. Given the stakes, it’s prudent to work with an experienced local divorce attorney.
4.What about life insurance? Does that need to be addressed?
Absolutely. If either spouse has life insurance naming the other as beneficiary, those designations need to be updated after the divorce.
5.Can we write our own informal separation agreement?
Informal DIY agreements often fail to fully protect both parties’ rights and may be nonbinding. It’s safest to formalize agreements with attorneys.
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