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Drafting Separation and Related Marital Agreements

Approaches to drafting agreements will differ, depending upon the type of agreement being drafted.
 
1. Determine what information you will need to put into the agreement.  
(a) In the case of a Marital Settlement Agreement, you will need the terms of the property division, terms for child custody and visitation, terms for both child and spousal support and for attorneys fees.
 
(b) In the case of a Settlement Agreement, where no court action is pending, you will need most of the same information as for a Marital Settlement Agreement, and may need information regarding the terms of continuing shared financial arrangements.
 
(c) For a pre-marital or pre-nuptial agreement, financial disclosures and precise terms regarding the parties' future financial relationship are necessary.
2. It is helpful to make a tentative list of the clauses in relevant chapters of Division II to help create an outline of the agreement to be drafted and to make sure you have obtained all the necessary information prior to doing the first draft of the agreement.
 
3. In preparing the first draft of the agreement, if there are substantial assets to be divided, it is clearer to address each asset or group of like assets or liabilities in separate paragraphs.

Practice Tip:  
Keep in mind that any agreement that will be part of any judicial proceeding, either immediately, for example, as part of a dissolution action, or in a future proceeding for enforcement of a settlement or pre-marital agreement, will be a public record. It is important to identify assets and liabilities sufficiently so that the parties are clear as to which asset or debt is being addressed, but not so particular that improper use could be made of the information. For example, in referring to a bank account number or a credit card account number, use xxxx1234, only the last four digits. 
 
For more guidance on how to draft separation and antenuptial contracts, see Chapter 1 of Lindey and Parley on Separation Agreements and Antenuptial Contracts (Matthew Bender & Company, Inc.).