MEMORANDUM OF UNDERSTANDING/SEPARATION AGREEEMENT CHECKLIST

INTRODUCTION: This checklist is a guide for the reviewer of your application to use in assessing the quality of the memoranda of understanding or the separation agreements you submit. As with the concept of certification in general, the emphasis on the quality of the written documents is intended to raise the standard of practice among divorce mediators in the Commonwealth.

The checklist is intended to be a guide that is comprehensive and specific. Not every Separation Agreement or Memorandum of Understanding will include provisions on each of the listed points. The Certification Committee does not intend to use the details to raise barriers against certification, but rather to assist individual members of the Council to increase their competence and avoid negligence. The Committee provides the following commentary for your guidance:

  1. You should select for submission those memoranda/agreements which are the most comprehensive you have drafted. This will assist the reviewer in assessing the breadth of your knowledge and experience.
  2. Remember that your submitted documents must contain financial aspects of the divorce, and at least one agreement that demonstrates your ability to deal with divorce involving a child or children under the age of 18.
  3. The reviewer will be looking for the following: the extent to which you have included items which appear on the checklist; the extent to which you have dealt appropriately with the items you include; the extent to which you deal consistently with items within the document; the clarity of your drafting and the organization of the document.

The category which causes the most potential difficulty for the reviewer is omitted items. You should review each submitted document to be sure that it is clear from the context of the document that any omitted items are appropriately omitted. If the document itself does not explain omissions, please attach a brief explanatory note.

For example, Real Estate: the parties own no real estate; Retirement Benefits: Neither party owns any retirement benefits.

  1. Be sure to remove all client identifying information from the document.

I. IDENTIFYING DATA

A. Place for Names of Parties (Be sure to delete actual names)

  1. Date/Place of Marriage
  2. Name(s) /Date(s) of Birth of Children (Be sure to delete actual names)

II.CUSTODY

  1. Legal Custody
  2. Physical Custody
  3. Living Arrangements and Childrens’ Activities/Parenting Plan (including weekdays, weekends, birthdays, transportation, holidays, and vacations)
  4. Current
  5. Future Modification / Periodic Review
  6. Each parent’s access to kids when they are with the other parent
  7. Relocation
  8. Travel Outside Massachusetts
  9. Notification of Illness
  10. Access to Children’s Record
  11. Access of other relatives to children and of children to other relatives
  12. Emergency decisions
  13. Parental Cooperation/Non-Disparagement
  14. Religion and Religious Training
  15. Contact of children with parents’ new partners

III. CHILD SUPPORT

  1. Support Amount
  2. Initial Amount
  3. Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines)
  4. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.)
  5. Allocation of child care cost
  6. Cost of vacations
  7. Duration (including definition of emancipation, and effect of death of payor)
  8. Time of Payment
  9. Periodic Review / Future Modification
  10. If more than one child: effect of emancipation of older child(ren) on child support
  11. Effect on child support when child attends college
  12. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
  13. Renegotiation (without specific method for adjustment)
  14. Tax Effect
  15. Not taxable to recipient
  16. Not deductible by payor
  17. Dependency Exemption(s)
  18. Children’s Accounts/Investments

IV.EDUCATION

  1. Definition of education (college/private elementary or secondary school)
  2. Definition of educational Expenses (e.g. tuition, room & board, application fees, travel home, books, computer, etc.)
  3. Apportionment of expenses (childrens’ funds, work, scholarships, parental contributions)
  4. Involvement of parties in process of choosing college to which applications will be made
  5. Involvement of parties in financial aid applications

V. ALIMONY

  1. Waiver of future alimony
  2. Amount
  3. Duration and reasons for termination (e.g., remarriage, cohabitation, death)
  4. Time of Payment
  5. Periodic Review/Future Modification
  6. Calculation method
  7. COLA
  8. Renegotiation (without specific method of adjustment)
  9. Tax Effect
  10. Tax deductibility
  11. Tax reporting for inclusion of income
  12. Effect of Alimony Termination on Child Support Obligation

VI. HEALTH AND DENTAL INSURANCE FOR CHILDREN

  1. Policy in Effect
  2. Obligation of coverage
  3. Duration of obligation
  4. Notification of change in policy
  5. Responsibility for premiums and copayments
  6. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy)
  7. Allocation
  8. Approval
  9. Loss of coverage / Alternate coverage

VII. HEALTH AND DENTAL INSURANCE FOR SPOUSE

  1. Policy in Effect
  2. Obligation of coverage
  3. Duration of obligation
  4. Notification of change in policy
  5. Responsibility for premiums:
  6. COBRA costs, if relevant
  7. Upon remarriage of either spouse
  8. Uninsured medical/dental expense
  9. Loss of coverage/Alternate coverage

VIII. LIFE INSURANCE

  1. Identification
  2. Allocation of cash value (if whole life)
  3. Amount (death benefit)
  4. Ownership
  5. Responsibility for payment of premium
  6. Beneficiary (optional establishment of trust)
  7. Future obligations:
  8. Duration, adjustment of amount
  9. Documentation/Option to review policy
  10. Default provision (claim on estate)

IX. MARITAL HOME

  1. Property address/county/state/owners/form of ownership
  2. Use and Possession
  3. If Joint Ownership:
  4. Type (tenants in common; joint tenants)
  5. Responsibility/Liability for Expenses
  6. Present/Future mortgages (including equity lines)
  7. Real Estate taxes
  8. Homeowner’s insurance
  9. Maintenance
  10. Capital Improvements
  11. Repairs (major and minor)
  12. Condo fees (if relevant)
  13. Division of rental income (if any)
  14. Tax Consequences: allocation of tax payments and depreciation, other deductions
  15. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership)
  16. Indemnification
  17. If Transfer to Third Party:
  18. Timing of transfer or sale
  19. Allocation of costs of preparation for sale (including repairs)
  20. Appraisal and setting asking/selling price
  21. Definition of proceeds
  22. Division of proceeds (including whether payor of mortgage gets credit for payment of principal)
  23. Capital Gains tax consequences
  24. If Transfer to Spouse:
  25. 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)
  26. Time of transfer
  27. Method, timing of payment
  28. Responsibility of sole owner for expenses after transfer
  29. Does non-owner stay on mortgage? If so, indemnification provision
  30. Tax consequences (e.g. transferee liable for capital gains taxes)

X. ADDITIONAL PROPERTY

  1. Pension/Retirement
  2. Description of plan(s)
  3. Contributory plan
  4. Defined benefit plan
  5. Valuation of plan, who pays for valuation
  6. Transfer provisions
  7. Division
  8. QDRO requirements, who pays for QDRO preparation
  9. Securities (stocks, bonds, stock options)
  10. Identification
  11. Ownership
  12. Division, buy-out, or other disposition
  13. Restrictions on voting, sale
  14. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit)
  15. Balance of account(s)
  16. Ownership
  17. Division or other disposition
  18. Family Business/Closely-held Corporation
  19. Identification
  20. Description
  21. Form of ownership (if less than 100%, amount of ownership)
  22. Value, and who pays for valuation
  23. Division, buy-out, or other disposition
  24. Real Estate (other than marital home)
  25. Description of property
  26. Ownership form
  27. Usage
  28. Rental
  29. Right to income
  30. Obligation for expenses
  31. Tax consequences
  32. Partnerships and Limited Partnerships
  33. Identification
  34. Value
  35. Division, buy-out, or other disposition
  36. Pending Legal Actions
  37. Tangible Personal Property
  38. Possession and storage
  39. Division; Provision for removal
  40. Trusts
  41. Identification
  42. Present or future interest in trust, nature of interest
  43. Value
  44. Division, trade-off, or other disposition
  45. Inheritances, actual or potential
  46. Identification
  47. Present or future interest in inheritance, nature of interest
  48. Value
  49. Division, trade-off, or other disposition
  50. Vehicles
  51. Make, model, year
  52. Who holds title
  53. Ownership upon divorce
  54. Responsibility for Loan/Hold Harmless
  55. Cooperation regarding applicable transfers
  56. Intellectual Property, including royalties, copyrights, trademarks, patents, etc.
  57. Cemetery Plots
  58. Frequent Flyer Miles
  59. Pets
  60. Photo Albums, family videos
  61. Waiver of rights to any property purchased by spouse after agreement is executed but before judgment of divorce becomes final

XI. TAXES

  1. How to file for last year of marriage
  2. Cooperation if joint filing
  3. Use and reporting of available deductions
  4. Division of refund or liability
  5. Contribution (if joint)
  6. Indemnification
  7. Cooperation for audit/investigation of prior years’ tax returns
  8. Capital gains tax consequences for all assets and/or capital loss
  9. Adjustment for change in tax laws

XII. DEBTS AND LIABILITIES

  1. Type of debt
  2. Allocation of responsibility for debts, including debts incurred after agreement is executed but before the judgment of divorce becomes final
  3. Indemnification

XIII. ADDITIONAL PROVISIONS TO BE INCLUDED IN DOCUMENTS (A through X appear in Separation Agreement; A through G appear in Memorandum of Understanding)

  1. Space for signature of parties
  2. Name of mediator
  3. Warranties about full disclosure of finances
  4. Mediator recommends separate and independent legal advice
  5. Procedure for future disputes (mediation clause)
  6. Responsibility for payment of mediation fee/legal fees/filing fees
  7. Privacy clause
  8. Merger/Survival of Agreement
  9. Debt payment designated as support and maintenance
  10. Promise of no past and future contraction of debt in the other’s name
  11. Waiver of right to take against will
  12. Waiver of right to after-acquired property
  13. Right to dispose of property by will
  14. Mutual release of all claims
  15. Entire agreement (no oral or extrinsic agreements)
  16. Acknowledgement of fairness and reasonableness of provisions
  17. Massachusetts contract.
  18. Severability; the unenforceability of a provision shall not affect validity of other provisions
  19. Waiver of provision not waiver of subsequent breach/default of provision
  20. Modification, amendment or waiver in writing to be valid
  21. Forever binding and conclusive on heirs, executors, assigns
  22. Indemnification for breach by breaching party from his/her estate (survives death)
  23. Effect of Bankruptcy
  24. Notarization

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