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:
a.
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.
b.
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.
c.
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.
d.
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) B. Date/Place of Marriage C. Name(s) /Date(s) of Birth of Children (Be sure to delete actual names)
II. CUSTODY A. Legal Custody B. Physical Custody C. Living Arrangements and Childrens’ Activities /Parenting Plan (including weekdays, weekends,
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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 Record H. Access of other relatives to children and of children to other relatives I. J. Emergency decisions Parental Cooperation/Non-Disparagement Contact of children with parents’ new partners
K. Religion and Religious Training L.
III. CHILD SUPPORT A. Support Amount a. b. Initial Amount Method of Establishing Payment (define income if using income-based formula other than Child Support Guidelines) c. d. Allocation of costs for extracurricular activities (e.g. camp, lessons, tutoring, sports, etc.) Allocation of child care cost
e. Cost of vacations B. Duration (including definition of emancipation, and effect of death of payor) C. Time of Payment D. Periodic Review / Future Modification a. If more than one child: effect of emancipation of older child(ren) on child support
b. Effect on child support when child attends college c. Periodic changes in amount: COLA, Guidelines, percentage method, formula, other.
d. Renegotiation (without specific method for adjustment) E. Tax Effect a. Not taxable to recipient b. Not deductible by payor 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 (childrens’ funds, work, scholarships, parental contributions)
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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 (e.g., remarriage, cohabitation, death) D. Time of Payment E. Periodic Review/Future Modification a. Calculation method b. COLA c. F. Renegotiation (without specific method of adjustment)
Tax Effect a. Tax deductibility b. 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 copayments F. Uninsured medical and dental expenses (Examples: orthodonture, psychotherapy) a. Allocation b. 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: a. COBRA costs, if relevant b. Upon remarriage of either spouse F. Uninsured medical/dental expense
G. Loss of coverage/Alternate coverage
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VIII. LIFE INSURANCE A. B. C. D. E. F. G. Identification Allocation of cash value (if whole life) Amount (death benefit) Ownership Responsibility for payment of premium Beneficiary (optional establishment of trust) Future obligations: a. Duration, adjustment of amount b. Documentation/Option to review policy c. 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: a. Type (tenants in common; joint tenants) b. 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) c. Division of rental income (if any)
d. Tax Consequences: allocation of tax payments and depreciation, other deductions e. Duration (including circumstances such as remarriage or change of custody that would trigger change in ownership) f. Indemnification
D. If Transfer to Third Party: a. Timing of transfer or sale b. Allocation of costs of preparation for sale (including repairs) c. Appraisal and setting asking/selling price
d. Definition of proceeds e. Division of proceeds (including whether payor of mortgage gets credit for payment of principal) f. Capital Gains tax consequences
E. If Transfer to Spouse: a. 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)
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b. Time of transfer c. Method, timing of payment
d. Responsibility of sole owner for expenses after transfer e. Does non-owner stay on mortgage? If so, indemnification provision f. Tax consequences (e.g. transferee liable for capital gains taxes)
X. ADDITIONAL PROPERTY A. Pension/Retirement a. Description of plan(s) i. Contributory plan ii. Defined benefit plan b. Valuation of plan, who pays for valuation c. Transfer provisions
d. Division e. QDRO requirements, who pays for QDRO preparation B. Securities (stocks, bonds, stock options) a. Identification b. Ownership c. Division, buy-out, or other disposition
d. Restrictions on voting, sale C. Bank Accounts (savings/checking accounts; money market funds; certificates of deposit) a. Balance of account(s) b. Ownership c. Division or other disposition
D. Family Business/Closely-held Corporation a. Identification b. Description c. Form of ownership (if less than 100%, amount of ownership)
d. Value, and who pays for valuation e. Division, buy-out, or other disposition E. Real Estate (other than marital home) a. 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 a. Identification
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b. Value c. Division, buy-out, or other disposition
G. Pending Legal Actions H. Tangible Personal Property a. Possession and storage b. Division; Provision for removal I. Trusts a. Identification b. Present or future interest in trust, nature of interest c. Value
d. Division, trade-off, or other disposition J. Inheritances, actual or potential a. Identification b. Present or future interest in inheritance, nature of interest c. Value
d. Division, trade-off, or other disposition K. Vehicles a. Make, model, year b. Who holds title c. Ownership upon divorce
d. Responsibility for Loan/Hold Harmless e. 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
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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 IN DOCUMENTS (A through X appear in Separation Agreement; A through G appear in Memorandum of Understanding) A. Space for signature of parties B. Name of mediator C. Warranties about full disclosure of finances D. Mediator recommends separate and independent legal advice E. Procedure for future disputes (mediation clause) F. Responsibility for payment of mediation fee/legal fees/filing fees
G. Privacy clause H. Merger/Survival of Agreement I. J. Debt payment designated as support and maintenance Promise of no past and future contraction of debt in the other’s name
K. Waiver of right to take against will L. Waiver of right to after-acquired property
M. Right to dispose of property by will N. Mutual release of all claims O. Entire agreement (no oral or extrinsic agreements) P. Acknowledgement of fairness and reasonableness of provisions Q. Massachusetts contract. R. Severability; the unenforceability of a provision shall not affect validity of other provisions S. Waiver of provision not waiver of subsequent breach/default of provision T. Modification, amendment or waiver in writing to be valid U. Forever binding and conclusive on heirs, executors, assigns V. Indemnification for breach by breaching party from his/her estate (survives death) W. Effect of Bankruptcy X. Notarization
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