Nolo's Essential Guide to Divorce - Emily Doskow [158]
"Boilerplate" Provisions
There are a few important provisions that should be in every legal agreement to help avoid confusion later. (Lawyers call this standard language "boilerplate.") For example, it's important to agree that you've both made full disclosure of all the required information about your finances. You should confirm that the written agreement you've made is the only one you have, that there aren't any side agreements that contradict what you've written, and that you intend the agreement to be incorporated into your final divorce order (this last provision is critically important).
You should also say what state law you'll use if you end up in court over your agreement. If one person moves away later and you don't have this provision, you could end up fighting about where you're going to fight.
Making sure you have all the required standard language is one of the reasons that it's a good idea to have a lawyer review your agreement.
Doing the Math
After you've negotiated the terms of your agreement and drafted your MSA, sit down with a pencil, paper, and calculator and do a ledger that shows the value of what each person is keeping. Make sure the division is what you want, whether it's an equal or an unequal division. Double-check the agreement to make sure it says what you want it to say and that the math works out.
After their long series of discussions and decisions, it became clear who was going to get what. Cynthia proposed to buy out Howard's $75,000 share in the house by giving up her share of Howard's pension and paying all of the joint debt. Between that and what Howard owed her for the baseball tickets, the end result of Cynthia's proposal was that she came out with $9,000 more in assets than Howard had. She proposed paying him the difference by taking less from the brokerage account and giving him more, and Howard agreed to the proposal.
Cynthia and Howard drew up a ledger sheet and listed all of their marital assets and debts, and how each item was to be divided. This is what it looked like when they were finished.
Consulting a Lawyer
When you've done everything you can do to prepare a draft MSA, it's time to take it to a lawyer for review. You don't absolutely have to do this-if you do your paperwork correctly, a judge will approve your divorce without checking to see whether a lawyer's been involved. But it's highly recommended, because your MSA controls everything involved in your divorce and can have an enormous impact on your future. It's time and money well spent.
Chapter 16 has advice on finding a lawyer to review your agreement. (It's a different process than finding a lawyer to represent you in a trial.)
After two months and six visits to the mediator, Cynthia and Howard had a draft marital settlement agreement. It hadn't been an easy process, but they both felt the agreement was fair and workable, and they were glad to have done it themselves. Still, their counselor urged them to have lawyers review the agreement to make sure that it would stand up later and was in compliance with all of their state's laws.
Cynthia was a little afraid the lawyer would try to talk her out of giving up her share of Howard's pension or would want to rewrite the agreement in legalese. Howard was more enthusiastic about the idea, so he got some recommendations from coworkers who had been through divorces and he began calling attorneys. The first lawyer said that she wasn't willing to review the document without doing a full interview and going over all of the financial information related to the marriage, for which she would charge a minimum of $2,500.
After a few more calls, Howard found an attorney who would review the agreement merely for clarity and legality, for an hourly fee of $225. She estimated it would take two to three hours to complete her review and give Howard her opinion. Howard emailed the lawyer the draft settlement agreement, and about a week later had a telephone conference with her. She suggested a few wording changes, but her biggest