INSTRUCTION SHEET
Additional Information
Overview of Divorce
Property Settlement and Separation Agreement Sample
1. PURPOSE: The purpose of a Property Settlement and Separation Agreement is to resolve as many of the financial, custodial and visitation issues of the marriage as the parties can agree to. 2. SAMPLE: The Sample Property Settlement and Separation Agreement attached, is guidance on possible provisions that may be useful in your case. The initial provisions regarding custody, visitation, child support, spousal support, medical insurance, furniture and belongings, personal property and pensions/retirement/401K plans and real property will vary depending on the circumstances of your case. The other provisions are meant to clarify the understanding of the parties and the effect of the agreement. The provisions contained in the sample are typical provisions, however, the circumstances of your case may not require all the provisions or may require additional provisions not included in the attached Sample. 3. SEEKING ADVICE FROM AN ATTORNEY: If you waive a right that you may be entitled to, such as spousal support or any right related to property/debt matters, than you will likely waive it forever. It is therefore strongly recommended that you seek the advice of an attorney before signing any Property Settlement and Separation Agreement to ensure that you are aware of all of your rights.
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PROPERTY SETTLEMENT AND SEPARATION AGREEMENT
THIS AGREEMENT made this ______ day of ___________________, _______, by and between the wife, ________________________, hereinafter known as Wife, and the Husband, _________________________, hereinafter known as Husband. WITNESSETH WHEREAS, the parties hereto were married to each other on ___________________ in ______________[city], _________________[state] and certain differences have arisen between them which appear to be irreconcilable, and because of this the parties are now living separate and apart from each other; and WHEREAS, there were no children born to the parties; and [OR] there were ______ children born of the marriage, whose names and dates of birth are: ________________________________________________________________ ________________________________________________________________; and WHEREAS, it is agreed and stipulated that the parties have separated from each other since _______________________; and NOW, THEREFORE, in consideration of the mutual promises and covenants herein set forth, Husband by his signature below, and Wife by her signature below, do contract and agree to be bound by the terms that here follow: 1. CHILD CUSTODY AND VISITATION With respect to the parties minor children, the parties agree as follows: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ With respect to visitation with the children by ____________________ for weekend, holiday and summer visitation, the parties agree as follows: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
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Each party shall give at least thirty (30) days advance notice in writing to the other party of their intention to relocate and/or change residence, pursuant to Va. Code Section 20-124.5. Such written notice shall provide the other party with the intended date of change of address, the specific street, city or county, state and zip code of the intended new address. 2. CHILD SUPPORT The parties agree that ________________ shall pay to ___________________, the amount of __________________ per month for child support for the parties minor children to be paid in _____ monthly installments on the ______________ days of each month. This support will continue to be paid for any child over the age of eighteen who 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 such child reaches the age of nineteen or graduates from high school, whichever first occurs, pursuant to Section 20-124.2.C of the Virginia Code. The parties agree that for the dependant child exemption for the children shall be taken by __________________ in the year _________ and thereafter. 3. SPOUSAL SUPPORT The parties agree that ________________ shall pay to ___________________, the amount of __________________ per month for spousal support for the parties minor children to be paid in _____ monthly installments on the ______________ days of each month. Said spousal support shall continue until further order of the court, the death of either party, the marriage of Wife, or the cohabitation of Wife in a relationship analogous to marriage. 4. FURNITURE, FURNISHINGS AND BELONGINGS The parties agree to divide the following furniture, furnishings and belongings as follows: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ 3 of 10
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[OR]
The parties agree that each shall keep the furniture, furnishings and other personal property which they owned prior to the marriage and which was received as gifts or inheritance from someone other than the parties during the marriage. In addition, the parties agree that they shall each keep all furniture, furnishings and other personal property which is now in their possession and such property will belong to that party, free and clear of the interest or claim of the other party. Husband waives any right to any property in the possession of the Wife and Wife waives any right to any property in the possession of Husband. 5. PERSONAL PROPERTY The parties agree that the following savings and/or checking accounts and/or investment accounts of the parties are to be divided amount the parties as follows: See Addendum for Protected Identifying Information – Confidential 6. MOTOR VEHICLES The __________________________________ [model, make, year of car] shall become the sole and separate property of Wife, free and clear of any right, title or interest of Husband. Wife agrees to transfer the titles into her name alone and to become totally and solely responsible for any liability associated thereto, including, but not limited to, any payments owed on said automobile, its maintenance and upkeep, personal property taxes and insurance, and shall insurance, and shall indemnify and hold Husband harmless from any and all liability arising from the same. The __________________________________ [model, make, year of car] shall become the sole and separate property of Husband, free and clear of any right, title or interest of Wife. Husband agrees to transfer the title into his name alone and to become totally and solely responsible for any liability associated thereto, including, but not limited to, any payments owed on said automobile, its maintenance and upkeep, personal property taxes and insurance, and shall indemnify and hold Wife harmless from any and all liability arising from the same. 7. DEBTS OF THE PARTIES The parties agree that they have marital debt as listed below and that each shall be responsible for payment of the listed debt as follows and shall indemnify and hold the other party harmless from any and all liability arising from said debt or loan: See Addendum for Protected Identifying Information – Confidential
[OR]
The parties agree that they shall each be solely responsible for their own debts. The parties agree that Husband shall indemnify and hold harmless, Wife, from any and all liability arising from his debts or loans. Wife shall indemnify and hold harmless, Husband, from any and all liability arising from his debts or loans. Subsequent to the 4 of 10
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date of execution of this Agreement, each party agrees to be responsible for his or her own debts as he or she incurs same, and each agrees not to charge debt to the other party or to attempt to obligate the other party in any way to any creditor. Each party agrees to make all of his and her debt payments promptly and regularly as may be required by the respective creditors and each agrees to hold the other harmless there from. 8. MEDICAL INSURANCE _______________ currently maintains medical insurance for ____________ and for the minor children. _____________ agrees to maintain at her expense, medical or health insurance, or an approximately equivalent policy, covering ___________________ ________________________________ and the minor children. 9. PENSION/RETIREMENT/401K ACCOUNT The parties agree that __________________ shall be entitled to receive fifty percent (50%) of the marital share (to include any appreciation thereto) in the ____________________________________ [name pension plan/retirement account/401K Plan]. The marital share of the above-named plan/account shall be defined as the amount in the plan/account that accrued between the date of marriage of the parties _________________ and the date of the parties separation________________. At the time of divorce, the parties shall enter a Qualified Domestic Relations Order providing for this division of the above-named plan/account. 10. REAL PROPERTY The parties agree that marital home located at _______________________________________________________________ _______________________________ shall be sold and that the net proceeds of the sale of the home, after payment of all ordinary expenses from the gross proceeds of the home, shall be divided equally by the parties. Neither party shall unreasonably withhold their consent to the sale of the home.
[OR]
_____________________ shall have exclusive use and possession of the marital residence located at ____________________________________________ until ____________ [date] at which time the parties agree that the home will be listed for sale with a mutually agreed upon real estate agency and sold. Neither party shall unreasonably withhold their consent to the sale of the home. Upon the sale of the home, the net proceeds of the sale of the home, after payment of all ordinary expenses from the gross proceeds of the home, shall be divided equally by the parties.
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11. FREEDOM FROM INTERFERENCE The parties shall be free from interference, authority or control of the other as fully as though each were unmarried. Each may engage in any business or profession as each may choose free from any business or profession as each may choose free from any1 influence from the other. Each may reside where he or she may choose free without restriction of the other. Each may choose his or her friends to associate with, whether they be of the same or the opposite sex, and the other shall not inquire as to the nature of the relationship, nor interfere with it in any way. The parties agree not to molest or harass each other at their respective places of employment, residence, on the streets or elsewhere. 12. WAIVER OF INTEREST IN PROPERTY Except as otherwise here provided, each party hereby relinquishes and release all statutory and common law rights which each may have or in the future may acquire to any property, real or personal, which the other now owns or may hereafter acquire and each agrees that he or she will, upon request of the other, execute and deliver such releases or assurances as may be desired by the other to indicate, demonstrate or carry-out the release and relinquishment of such interest. 13. WAIVER OF INTEREST IN ESTATE Except as may be otherwise provide herein, each party hereby now and forever waives and releases in favor of the other all claims or demand arising out of the marriage relationship, including dower and courtesy rights, homestead allowance rights, family allowance rights, the right to elect against a will of the other, the estate under Virginia Code Section 64.1-13 or successor section, the right to any distribution of the estate of the other, the right to any distribution of the estate of the other, the right to inherit any property of the other by Will or by the laws of intestacy, the right to act as executor or administrator for the estate of the other, and any other such similar or related acts. These waivers are intended to be fully effective and binding both under general principles of law and Virginia Code Section 64.1-151.6. This shall not constitute a bar or waiver of either party to take a bequest or to serve in any capacity according to the Will of the other if said Will was executed subsequent to the execution of this Agreement. 14. ENFORCEMENT In the event that either party should take legal action against the other by reason of the other's failure to abide by this Agreement, the party who is found to be substantially in violation of this Agreement shall pay to the party who substantially prevails in said
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action, the prevailing party's reasonable attorney's fees, investigators costs, court costs and any other costs reasonably incurred in the enforcement of this Agreement. Any such costs incurred by a party who substantially prevails in the defense of any action for enforcement of any of the agreements, covenants or provisions of this Agreement shall be borne by the parties seeking to enforce compliance. 15. EXECUTION OF DOCUMENTS The parties hereto agree that each will execute any necessary documents required reasonably to carry out the terms of and intent of this Agreement so as to enable either party to sell, convey, or otherwise dispose of his or her real or personal property, free of any rights or interests of the other party. Such documents may include deeds to real property, titles to automobiles, certificates of stock, certificates of deposit, deeds of trust to property owned by the other party, etc. 16. MODIFICATION OR WAIVER It is understood that no modification of the terms of this Agreement shall be valid unless such modification is in writing, signed by the party to be bound by such modification. No waiver of any default of this Agreement shall constitute a waiver of any other or any subsequent default. 17. GOVERNING LAW This Agreement shall be construed under the laws of the Commonwealth of Virginia existing at the time of the execution of the Agreement. 18. INCORPORATION INTO DIVORCE The parties agree that this Agreement in its entirety shall be submitted to the Court in which any divorce action is filed and it shall be ratified, approved and shall be incorporated into and made a part of the Final Decree of that action. The parties each agree not to oppose such incorporation and they agree that subsequently, this Agreement shall be enforceable as part of said decree or independently as a contract between the parties. In addition, the parties agree that any amendments or modifications to this Agreement entered into after such incorporation into a Decree shall be incorporated in an Amended Decree in order that the court record reflect the intent and meaning of the parties' agreements. 19. SUBSEQUENT DEBTS, PLEDGING OF CREDIT Each party agrees to be fully responsible for his or her own debts, charges and obligations henceforth. Each agrees not to charge on accounts for which the other may be liable without the express written consent of the other, nor to pledge the credit of the other in any way without express written consent. Further, each party agrees to indemnify the other in the event of any loss for any debts, charges or obligations created by that party for which the other may suffer a loss. 7 of 10
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20. SEVERABILITY If any provision 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 part found or held to be unenforceable or invalid causes a material and substantial failure of consideration in the basic intentions and bargains of the parties. 21. BINDING EFFECT The parties hereby covenant and agree that all stipulations, agreements and provisions shall continue and apply in full force and effect and shall be obligatory upon the parties hereto, their heirs, assigns, executors, administrators, trustees, successors-in-interest, etc., whether so expressed or not. 22. PRIOR AGREEMENTS INVALID In consideration of the covenants and agreements contained herein, the parties do hereby cancel, nullify and invalidate any and all prior agreements as to the subject matter covered in this Agreement 23. FULL DISCLOSURE OF ASSETS AND OBLIGATIONS This Agreement is made upon the assumption that each of the parties hereto has made a full, complete and total disclosure to the other of the nature and extent of all the assets. As to any asset of a party to which no such full disclosure has been made by that party, then this Agreement shall not apply to such asset and an appropriate Court is granted by the parties full jurisdiction to divide such undisclosed assets equitably, pursuant to the equitable distribution law of Virginia. 24. UNDERSTANDING RIGHTS TO EQUITABLE DISTRIBUTION AND SUPPORT Both parties hereto have been advised that under the laws of the Commonwealth of Virginia they may have support rights, rights to equitable distribution of property, rights to lump-sum awards of money, rights in the vested or unvested pensions of each other and they may have other rights arising out of the marriage relationship of the parties. In executing this Agreement, the parties waive any and all such rights as they may have to pursue such remedies under the laws of the Commonwealth of Virginia, or under the laws of another jurisdiction, and each agrees to accept the provisions of this Agreement as full satisfaction for all such claims. 25. UNDERSTANDING THIS DOCUMENT The parties agree that they are entering into this Agreement freely and voluntarily and after due thought and consideration to all of the relevant facts and circumstances regarding grounds of divorce, property rights and values support rights and interests of any children involved. The parties acknowledge that they have had the opportunity to 8 of 10
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seek legal advice of their own choosing independent of the choice of the other. The parties each acknowledge that they have read the Agreement fully, they understand it and they assent to it. 26. COUNSEL FEES AND COURT COSTS The parties agree that each will bear his and her own cost of representation by any attorneys for the negotiation and preparation of this Agreement and for the fees and costs which may be incurred in the obtaining of a divorce. IN WITNESS WHEREOF, the parties hereto, after free and full discussion of the terms contained herein and with an understanding of the meaning and intent of those terms and provisions, have this day first mentioned placed their signatures and seals upon this Agreement and by so signing they hereby agree with all the terms and provisions thereof. Wife ___________________
Signature
Wife ___________________
Printed
Husband ______________________
Signature
Husband ___________________
Printed
State of Virginia: County/City of _________________, to-wit: I, the undersigned Notary Public for the County and State aforementioned, do hereby certify that ________________________, whose name is signed to this document, appeared before me this day in person and acknowledged same in my presence. GIVEN under my hand this Notary Public My Commission Expires: State of Virginia: County/City of ________________, to-wit: I, the undersigned Notary Public for the County and State aforementioned, do hereby certify that _______________________, whose name is signed to this document, 9 of 10
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day of
, 200___.
.
appeared before me this day in person and acknowledged same in my presence. GIVEN under my hand this Notary Public My Commission Expires: day of , 200___.
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