Divorce Agreement

By: Martin M. Shenkman, CPA, MBA, JD

There are many different documents that could be referred to as a "divorce agreement". A separation agreement may be negotiated, prepared and signed when you and your spouse separate. This agreement may be later incorporated into (made part of but lawyers like to use longer words) a divorce agreement (also called a property settlement agreement). In many cases there is no interim agreement and simply the final property settlement and divorce agreement. Be REALLY careful using self help books to do these. While you can save time and money using self help books and sample forms to figure out and hopefully agree with your ex-spouse to be on some or hopefully many issues, even in "simple" divorces there can be thorny tax, legal, property and other issues. Further, there is always follow up issues -- e.g. getting your last tax return signed, assuring each of you has sufficient information for post-divorce tax audits, separating assets, tax implications of separating assets, and a host of other matters, that really require professional expertise. Strive to keep it peaceful and to minimize costs, but don't' be penny wise and pound foolish trying it totally on your own. See Shenkman "Divorce Rules for Men" available through www.amazon.com for more information (even if you're not a guy). If you sign a living together agreement (governs rights of non-married partners), a pre-nuptial agreement (governs rights during the future marriage of non-married partners planning to marry) or a post-nuptial (ante-nuptial) agreement (also called a mid-marriage agreement) which governs the rights of married partners (done during marriage; sometimes viewed as a pre-divorce agreement) -- any of these documents could be viewed or called in some sense a "divorce agreement" because they may impact the terms of a divorce. You could view the process even more broadly and include estate planning documents that impact an ultimate divorce as a divorce agreement. For example, your parents could set up a trust to hold assets they gift or bequeath to you (sometimes called an inheritor's trust) to prevent those assets from being reached by your spouse in a divorce). In the broadest sense these too can be considered divorce agreements.

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