Many of Kales & Kales’ divorce mediation clients and potential clients are curious about what the Marital Settlement Agreement, the final product a Northern Virginia divorce mediation lawyer prepares, will look like. The following is an example:
MARITAL SETTLEMENT AGREEMENT
THIS MARITAL SETTLEMENT AGREEMENT is made by and between [Husband’s Name], who is referred to as “Husband” in this Agreement, and [Wife’s Name], who is referred to as “Wife” in this Agreement. Husband and Wife may be jointly referred to hereinafter as “the parties”.
RECITALS
A. The parties were married on [date] in [city/town, state].
B. There was one child born of the marriage, namely: [name of child], born [date], who is referred to as “the child” in this Agreement. No further children were born of the marriage, and no children were adopted of the marriage.
C. The parties separated on [date] and have lived separate and apart, without any cohabitation as husband and wife and without interruption since that date, with at least one of the parties having the intent to permanently terminate the marital relationship, and said intent continues to this date.
D. The parties desire to settle, by agreement, all of their rights, interests, and obligations between them and to resolve all claims or demands each might have against the other.
E. The parties contemplate this Agreement will be offered in a court of competent jurisdiction in which their rights and obligations may be decided at a later time as their full and complete settlement agreement, in the place of any court determined resolution of these matters.
F. Jonathan Kales and Amy Kales, via mediation, facilitated Husband’s and Wife’s discussion of the terms of this Agreement, and they each signed an Agreement to Mediate acknowledging their understanding of the following: (a) a mediator does not give legal advice, (b) any mediated agreement can affect their legal rights, (c) they have the opportunity, at any time, to seek legal advice, (d) they should have any agreement originating from the mediation reviewed by independent legal counsel, before signing.
G. Husband and Wife agreed to participate in mediation in good faith and to make a full disclosure of all relevant issues, problems, facts, and financial information.
NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements in this Agreement, and in full, complete and final settlement, adjustment and compromise of all of their respective property, debt, and support interests, and for valuable consideration, Husband and Wife agree as follows:
1. AGREEMENT TO BE INCORPORATED IN ANY DIVORCE DECREE OR ORDER. Both parties desire to have the provisions of this Agreement affirmed, ratified and incorporated by reference into any decree or order of divorce granted by any court of competent jurisdiction in full and complete settlement of all rights which each may have in the property or estate of the other. Both parties shall therefore request, and shall take all actions necessary, to have the terms of this Agreement affirmed, ratified, and incorporated by reference into any final decree or order of divorce, in full and complete settlement of all rights which each may have in the property or estate of the other. Notwithstanding such incorporation, this Agreement shall not be merged into the divorce decree or order but shall survive and shall be fully binding on the parties for all time. Neither party shall seek the entry of any order which would purport to require a division of property that is contrary to the divisions set forth in this Agreement.
2. HUSBAND WAIVES ALL RIGHTS AND CLAIMS IN PROPERTY OF WIFE NOT CREATED OR PRESERVED BY THIS AGREEMENT. Except only to the extent that rights are created or preserved under this Agreement, Husband forever waives and relinquishes all right, title and interest which he now has or may in the future have in the real, personal and mixed property of Wife, including, without limitation, any pension or retirement plans or survivor benefits under such plans, all rights to temporary or permanent spousal support or maintenance, all rights under the Virginia Augmented Estate Act, all rights of dower or curtesy, all right, title and interest which he has or ever may have in the property of Wife at the time of her death, and all right and interest to take against her will or under any intestate laws, and every other right, title and interest he has now or may in the future have against Wife, her heirs, executors, administrators or assigns, arising from their marital relationship, and his right to a court-ordered division of property in a divorce action except in accordance with the terms of this Agreement.
3. WIFE WAIVES ALL RIGHTS AND CLAIMS IN PROPERTY OF HUSBAND NOT CREATED OR PRESERVED BY THIS AGREEMENT. Except only to the extent that rights are created or preserved under this Agreement, Wife forever waives and relinquishes all right, title and interest which she now has or may in the future have in the real, personal and mixed property of Husband, without limitation, to any pension or retirement plans or survivor benefits under such plans, all rights to temporary or permanent spousal support or maintenance, all rights under the Virginia Augmented Estate Act, all rights of dower or curtesy, all right, title and interest which she has or ever may have in the property of Husband at the time of his death, and all right and interest to take against his will or under any intestate laws, and every other right, title and interest she has now or may in the future have against Husband, his heirs, executors, administrators or assigns, arising from their marital relationship, and her right to a court-ordered division of property in a divorce action except in accordance with the terms of this Agreement.
4. NONINTERFERENCE. As long as the parties continue to live apart, each shall be free from direct or indirect interference of the other in the conduct of his or her life. Each party may engage in any employment, business or profession as he or she may choose, and each shall have full and complete independence of action in all business and social relations. The public and private activities of each shall be free from restraint or supervision and control of the other, as though the parties had never been married to each other.
5. WAIVER OF EQUITABLE DISTRIBUTION AND OTHER STATUTORY RIGHTS. The division of the parties’ property shall be only in accordance with the terms of this Agreement. Unless a provision of this Agreement specifically states otherwise, no property of either party shall be subject to any claim for contribution, EQUITABLE DISTRIBUTION under Virginia Code § 20-107.3 or successor section, FAMILY ALLOWANCE under Virginia Code § 64.1-151.1 or successor section, EXEMPT PROPERTY under Virginia Code § 64.1-151.2 or successor section, and HOMESTEAD ALLOWANCE under Virginia Code § 64.1-151.3 or successor section. Each party forever waives his or her right to claim ELECTIVE SHARE in the surviving spouse’s augmented estate under Va. Code §64.1-13 or successor section. This waiver is intended to be effective and binding both under general principles of law and under Virginia Code § 64.1-151.6.
6. SPOUSAL SUPPORT.
A. Husband. [details regarding spousal support]
B. Wife. [details regarding spousal support]
7. PARENTING.
A. Legal Custody. [details regarding legal custody]
B. Parenting Schedules.
i. The parenting schedules in this paragraph 7(B) shall govern when the child will be with each parent; however, Wife and Husband may make changes to these schedules by mutual agreement without court approval or the modification of any court order. Each parent shall consider the convenience of both parents, the child, and the reasonable requests of the other parent.
ii. Regular Schedule. [details of regular schedule]
iii. Holidays/Special Occasions. [details of holiday schedule]
iv. Right of First Refusal. If either parent reasonably anticipates being unable to care for the child [period of time] during his or her scheduled parenting time, that parent shall provide the other parent with as much notice as possible and give the other parent the first option to be with the child for that period in order to maximize the amount of time each parent has with the child and minimize the child’s time with childcare providers. If, however, the other parent is unable or unwilling to care for the child at that time, it is the responsibility of the parent with whom the child are supposed to be at that time to provide necessary childcare.
v. Transportation. Unless otherwise agreed, the parent who is transferring the child to the other’s care at a given time shall drop off the child at the home of the other.
C. Pursuant to Virginia Code § 20-124.5, either parent who intends to relocate his or her residence before the child reaches the age of eighteen shall give a thirty-day advance written notice of any such intended relocation and of any intended change of address, said notice being given to both the other parent and, if a divorce action has been filed, to the court in which the divorce action was filed. In the event either parent anticipates a move that will make the parenting schedule set forth in this paragraph 7 impractical, the parent who is relocating shall provide the other parent at least ninety (90) days’ notice of his or her intent to relocate, and the parents shall make a good faith attempt in mediation to agree to a new parenting plan before either parent files a petition with any court to modify the parenting schedule set forth in this paragraph 7.
D. Fostering Strong and Loving Relationship. Neither parent will attempt in any way to alienate the child from the other parent nor will either parent make any negative or derogatory statements about the other parent to or in front of the child. Rather, each parent acknowledges a duty to act to foster a strong and loving relationship between the child and the other parent.
E. Telephone/Electronic Contact. Husband and Wife shall be entitled to reasonable telephone and electronic contacts with the child when the other parent has the child in their care. Each parent shall facilitate these contacts (telephone, email, text messages, etc.) between the other parent and the child, and neither parent shall interfere with these contacts nor participate in any way with these contacts.
F. Communication. Husband and Wife specifically agree not to use the child as a conduit for communication regarding the parenting schedule.
G. Medical Needs. Notwithstanding anything to the contrary in this Agreement, when the medical needs of the child require emergency medical care to be given, either of Husband and Wife is authorized to make all decisions and administer the emergency care or have the emergency care administered without notification or consultation with the other parent; however, the parent will provide as much notice to, and have as much consultation with, the other parent as possible. As soon thereafter as practical, the parent will notify the other parent with reasonable detail of the circumstances and care given. Neither parent shall consent to having the child undergo any elective or non-emergency treatment without the consent of the other parent.
8. CHILD SUPPORT. Beginning the first day of the first month following the Effective Date of this Agreement and continuing on the first day of each month thereafter, [Husband/Wife] shall pay directly to , [Husband/Wife] the sum of $____per month in child support until, pursuant to § 20-124.2(C) of the Code of Virginia, 1950, as amended, the child attains the age of eighteen (18) years, marries, become self-supporting or otherwise becomes emancipated, whichever event first occurs; provided however, that support shall continue to be paid for the child if he is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until the child reaches the age of nineteen (19) or graduates from high school, whichever first occurs; additionally, Husband and Wife understand the court may order the continuation of support for a child who is over the age of 18 and is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) residing in the home of the party seeking or receiving child support. This amount was determined by agreement of the parties.
9. LIFE INSURANCE. [details regarding life insurance]
10. REAL PROPERTY. [details regarding martial home and any other real property]
11. INTANGIBLE PERSONAL PROPERTY.
A. Deposit Accounts. [details regarding bank accounts]
B. Retirement. [details regarding retirement accounts]
12. TANGIBLE PERSONAL PROPERTY.
A. Vehicles. [details regarding vehicles]
B. Other Tangible Personal Property. [details regarding other tangible personal property]
13. DEBTS. [details regarding other tangible personal property]
14. MEDICAL AND DENTAL INSURANCE AND EXPENSES.
A. Husband and Wife.
i. Coverage. [details regarding Husband’s and Wife’ coverage]
ii. Unreimbursed Expenses. [details regarding payment of Husband’s and Wife’s unreimbursed medical expenses]
B. Child.
i. Coverage. [details of child’s coverage]
ii. Unreimbursed Expenses. [details regarding payment of child’s unreimbursed medical expenses]
15. TAX RETURNS. [details regarding tax returns]
16. FEES. Each party shall be responsible for their own attorney’s fees and costs incurred related to the preparation, negotiation, and finalization of this Agreement and related to any divorce proceedings in court wherein this Agreement would be incorporated. However, except as specifically provided in this paragraph 16, nothing contained in this Agreement shall bar or prevent either party from requesting an award of attorney’s fees in any court proceeding between them.
17. COSTS OF ENFORCEMENT AND INDEMNIFICATION.
A. If either party fails to abide by or to perform any of the provisions of this Agreement, and the other party is required to resort to a court of competent jurisdiction to compel compliance with this Agreement, then provided that the initiating party receives substantially the relief requested in the initial pleading (or in the last settlement draft prior to initiating litigation, whichever amount is higher) the Court may order the breaching or nonperforming party to pay to the other party a portion or all the counsel fees, court costs, court reporter’s fees, and expenses of travel incurred by the other party and the breaching or nonperforming.
B. If any claim, action, or proceeding shall be brought against either party upon any debt or liability incurred by the other party or made the responsibility of the other party under this Agreement, then the party who incurred or assumed the debt or liability shall pay, as they are incurred, all counsel fees and costs incurred by the other in defending any such action, claim or proceeding, regardless of whether the proceeding is well-founded, and shall hold the other party harmless from any judgment, damages, fees, costs, or other economic detriment caused by such action, claim or proceeding.
18. SOCIAL SECURITY BENEFITS UNAFFECTED. Nothing contained in this Agreement is intended to preclude either party from any entitlement to any benefit to which that party is entitled by law as a surviving spouse or former spouse under the Social Security laws of the United States.
19. AFTER-ACQUIRED PROPERTY. Unless otherwise specified in this Agreement or necessary for its enforcement, any property acquired by a party after the Effective Date of this Agreement shall be the sole and separate property of the acquiring party, free of any claim by the other.
20. SUBSEQUENT GIFTS AND BEQUESTS BETWEEN PARTIES UNAFFECTED. Nothing contained in this Agreement shall invalidate any inter vivos gift made by one party to the other which is made after the date of execution of this Agreement or any testamentary gift which passes from one party to the other under a testamentary instrument executed after the date of execution of this Agreement.
21. FULL SETTLEMENT. Each party accepts the covenants and conditions of this Agreement in full, complete, and final settlement of all claims relating to the matters contained in this Agreement.
22. BINDING EFFECT. This Agreement shall bind, and shall inure to the benefit of, Wife and Husband and their heirs, successors, executors, administrators, and assigns. Wife and Husband intend that this Agreement is fully binding both by common law and also, as consistent with law, pursuant to Virginia Code §20-155.
23. BANKRUPTCY.
A. None of the financial duties and/or responsibilities, assumed by each party in this Agreement, shall be dischargeable in bankruptcy, as each party has given valid consideration and relinquished his or her marital rights for them. Likewise, no hold harmless provisions, debt assumption agreements, and/or agreements to pay attorney’s fees and costs, specified herein, shall be dischargeable in bankruptcy, as they are (i) in the nature of alimony, maintenance and/or support and (ii) incurred by each party in connection with a separation agreement, divorce decree or court order.
B. Wife and Husband acknowledge that each of them has the ability to pay any and all financial obligations assumed or accepted by each pursuant to the terms of this Agreement from his/her income or property, the expenditure of which is not reasonably necessary for that party’s maintenance and support, or the maintenance and support of that party’s dependant(s), and which is not necessary for the continuation, preservation and operation of any business engaged in by that party.
C. Wife and Husband further acknowledge that the discharge in bankruptcy of any obligation or debt provided for in this Agreement would result in detrimental consequences to the non-obligated party that outweighs any benefits to the party requesting the discharge.
D. In the event either party files for bankruptcy and receives a discharge of any financial duty, obligation and/or responsibility owed herein, as a result of which the non-filing party incurs any liability, then the non-filing party shall have specifically reserved to him or her a right to seek an immediate award of non-taxable spousal support from the filing party. This award of non-taxable spousal support shall be payable notwithstanding the non-filing party’s remarriage, Further, the non-taxable spousal support award shall be in amount equal to any judgment and/or damage of any nature suffered by the non-filing party (including any attorney’s fees as awarded by the Court by the non-filing party as a result of any bankruptcy filed by the other spouse) resulting from the filing party’s discharge of any obligation set forth in this Agreement for which the non-filing party becomes liable as a consequence.
24. ADDITIONAL INSTRUMENTS AND FURTHER ASSURANCES. Each party shall at any time in the future, upon the request of the other, execute all instruments, such as deeds, titles, consent forms to change beneficiaries and/or survivor benefits, insurance, and/or other such forms, waivers, and/or other documents, necessary to complete the transfers described in this Agreement and/or which may be necessary to enable the other party and/or his heirs, executors, administrators, successors, and/or assigns to hold and/or dispose of his or her property free and clear of all rights of the other party. Further, each party shall, upon the request of the other, execute and deliver all additional and further assurances of any nature that may be necessary or desirable to carry out the intent of this Agreement.
25. ADDRESSES TO BE PROVIDED. Until all of the obligations created by this Agreement have been fully performed by both parties, each party shall at all times keep the other informed of his or her residential address and shall notify the other of any change of residential address at least thirty (30) days prior to any such change, providing the address of the new residence.
26. AGREEMENT WILL SURVIVE RECONCILIATION. This Agreement shall not be invalidated by a reconciliation or resumption of marital cohabitation of Wife and Husband. This Agreement shall be nullified in the event of reconciliation only if Wife and Husband specifically execute a statement, signed by each of them with the same formality as this Agreement, declaring this Agreement to be null and void.
27. FULL DISCLOSURE.
A. Husband and Wife acknowledge they have not exchanged information regarding assets and debts and have negotiated and entered into the terms of this Agreement without personal knowledge of the other’s assets and debts. Wife and Husband further acknowledge that each has considered the discovery procedures available, including written questions to the other party (“Interrogatories”), depositions, and Requests for Production of documents, but Wife and Husband have weighed the potential value of the information which might be obtained against the time, effort and costs necessary to obtain such information, and have waived the opportunity to utilize these procedures. Each party is satisfied that he or she has had adequate information on which to base a decision that this Agreement is a fair and adequate settlement of the rights and claims of Wife and Husband.
B. As to any material marital asset (defined as any asset in excess of $1,000 in value) which was not disclosed prior to the date of this Agreement, subject to paragraph 42 below, a party may seek equitable distribution from a court of competent jurisdiction notwithstanding statements herein to the contrary.
28. ENTIRE UNDERSTANDING. This Agreement contains the entire understanding of Wife and Husband, and there are no representations, covenants, undertakings, or warranties other than those expressly set forth herein. Any previous agreement between Wife and Husband is expressly superseded by this Agreement and shall be of no further force or effect.
29. SEVERABILITY. If any provisions of this Agreement are found or held to be unenforceable or invalid, then all other provisions of this Agreement shall continue to be in full force and effect, unless the provisions found or held to be unenforceable cause a substantial change in the basic intentions and bargain of Wife and Husband, in which event, subject to paragraph 42 below, the Court shall modify such provisions so as to preserve Wife and Husband’ original basic intent and bargain.
30. LANGUAGE USAGE. Whenever the context of any provision requires, the masculine gender shall be deemed to include the feminine (or vice versa), the neuter to include either or both genders (and vice versa). An error in such usage shall not be used by either party to defeat the intended effect of any provision in this Agreement.
31. OPPORTUNITY TO CONSULT COUNSEL. Each party has had the opportunity to review this Agreement and to have its terms and effect explained to that party by a lawyer.
32. CONSTRUCTION AGAINST DRAFTING PARTY INAPPLICABLE. Both parties (and their respective counsel) shall be treated as having drafted this Agreement; therefore, neither party shall have any ambiguity construed against him nor her, and neither party shall be entitled to claim the benefit of any ambiguity resulting from the drafting of this Agreement.
33. MODIFICATIONS. A modification of the terms of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement.
34. DEFAULTS NOT WAIVED. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any continuing or subsequent default of the same or similar nature.
35. HEADINGS NOT BINDING. The headings used in this Agreement are for conveniences of Wife and Husband only and shall not be used to establish or interpret any of the rights or obligations set forth in this Agreement.
36. TIME IS OF THE ESSENCE. Time is of the essence in the completion of the obligations created by this Agreement. Any obligation for which a time of completion is not specified shall be completed within sixty (60) days of the execution of this Agreement.
37. MULTIPLE ORIGINALS. This Agreement shall be executed in five identical copies. Each of the executed copies shall be deemed an original. All five executed copies nevertheless constitute the same Agreement.
38. GOVERNING LAW. This Agreement and its interpretation shall be governed by the laws of the Commonwealth of Virginia.
39. EFFECTIVE DATE. The Effective Date of this Agreement shall be the date upon which both parties have fully signed this Agreement and initialed all changes (if any).
40. TAX ADVICE. Both parties acknowledge they have been informed the payment of money and transfer and/or division of property may have adverse tax consequences to them, and they acknowledge the most appropriate method for determining the tax consequences of this Agreement is to confer with tax accountants, tax attorneys, and/or other tax experts of their choosing, and they have been advised to do so prior to signing this Agreement. The mediators and attorneys for both parties for this Agreement have informed Wife and Husband that the mediators and attorneys are not tax attorneys or otherwise experts as to income tax or other tax consequences of separation and divorce. Accordingly, each party holds his or her respective attorney, and their mediators, harmless as to income tax and other tax issues and consequences insofar as neither attorney, nor their mediators, have offered definitive tax guidance in this manner. Each party hereto shall assume full, complete, and exclusive responsibility for the tax consequences of this Agreement.
41. CORRECTION OF MISTAKES. Wife and Husband have arrived at this Agreement through mediation and have committed not to take advantage of mistakes anyone makes in mediation. If Wife and Husband learn of a material mistake (if monetary, exceeding $1,000 in cumulative value) that has been incorporated into this Agreement, they agree to bring it to the attention of the other party, and such mistake shall be corrected. If Wife and Husband are unable to resolve the issue between themselves, they will seek the assistance of their mediator and their attorneys and will work together to try and resolve and correct the mistake.
42. DISPUTE RESOLUTION PROCESS. Despite their separation, Wife and Husband intend to remain on civil terms. They recognize that disagreements may arise between them in the future, and they agree to settle these without court intervention whenever possible. With the exception of emergencies, if Wife and Husband do not promptly between themselves resolve any controversy as to the interpretation or alleged breach of this Agreement or any other dispute regarding this Agreement, they shall promptly try to resolve the controversy in mediation. If mediation fails and/or does not appear to be productive after a good faith effort, either party may then file a petition with a court of proper jurisdiction.
43. FILING DIVORCE SUITS. This Agreement shall not bar or affect any of the rights of either party to institute or prosecute proceedings for divorce against the other in any court of competent jurisdiction, and, if divorce proceedings are instituted by either of them, they shall be instituted upon no-fault grounds only.
IN WITNESS WHEREOF, Wife and Husband hereto have set their hands and seals the day and year first above written.
_________________________________
[HUSBAND’S NAME]
COMMONWEALTH OF VIRGINIA, COUNTY OF ____________, ss:
On this ____ day of ________, 2020, before me, a Notary Public, in and for the aforesaid jurisdiction, personally appeared, [HUSBAND’S NAME], who satisfactorily identified himself as the individual who executed the foregoing Marital Settlement Agreement and acknowledged to me he freely and voluntarily executed the same for the purposes named herein.
______________________________
Notary Public
My Commission Expires:
_________________________________
[WIFE’S NAME]
COMMONWEALTH OF VIRGINIA, COUNTY OF ____________, ss:
On this ____ day of _____, 2020, before me, a Notary Public, in and for the aforesaid jurisdiction, personally appeared, [WIFE’S NAME], who satisfactorily identified herself as the individual who executed the foregoing Marital Settlement Agreement and acknowledged to me she freely and voluntarily executed the same for the purposes named herein.
_____________________________
Notary Public
My Commission Expires: