One of the most crucial aspects of any dissolution of marriage case in California is the conclusion of the case where orders are made by the Family Court. Whether a judge enters a judgment in your case after a trial, or if you enter into a written agreement to resolve your case, the terms of that judgment are going to be absolutely critical in your life. You want to make sure that your divorce judgment contains the terms most favorable to you and your children.
Why are the terms of a judgment so important? Here are the reasons that the terms that a Marital Settlement Agreement or Stipulated Judgment, or a judgment that is entered by the court following a trial, are so important:
In any divorce case the agreements between the parties are set forth in a Marital Settlement Agreement. This Marital Settlement Agreement is attached and incorporated into the Judgment of Dissolution form (FL-180).
For example, in a divorce case with children, the Marital Settlement Agreement will contain orders concerning child custody, visitation, child support, division of property, spousal support, and any other agreements related to the parties.
Once a Marital Settlement Agreement is drafted, signed by the parties and file stamped by the Court, this becomes the Judgment in the case. The orders contained within the Judgment are enforceable by law enforcement as well as the family court.
Arriving at the terms incorporated into a Marital Settlement Agreement may be the result of negotiations between the parties and counsel outside of Court. It may also be the result of attending a settlement conference and agreeing to the terms of the Judgment in writing or having the terms read orally in court with court reporter present (i.e. reading an agreement into the record). Once the terms are written and signed or read into the record, then counsel for the parties draft and negotiate the final language set forth in the Marital Settlement Agreement.
A Stipulated Judgment is similar to a Marital Settlement Agreement in that the Stipulated Judgment contains agreements between the parties about all of the same issues discussed above. However, a Stipulated Judgment is usually a shorter and more abbreviated version of a Marital Settlement Agreement. Many cases that are contentious end up resolved through negotiating the terms and incorporating the same into a stipulated judgment. The effect of a the terms of a stipulated judgment are the same in that once attached and incorporated into a Judgment of Dissolution (FL-180) or Judgment of Paternity (FL-250) and the terms are enforceable by civil and criminal penalties.
Because of the importance of a marital settlement agreement or stipulated judgment, it is extremely important that you hire an attorney (even in a limited scope capacity) to draft or at least review your proposed agreement. There are certain terms that should be included that are critical to your future, and there may be certain provisions that you don’t understand in your agreement that could prove extremely detrimental to you.
The California Court system actually provides a template form that you can download here: Marital_Settlement_Agreement, which is copied in full below at the bottom of this page .
We must caution you that this is not a document we created, and we do not advise using this form without legal assistance from a qualified attorney. The agreements that our firm drafts and/or reviews are far more complex than the template provided above, although that template will at least provide you with some insight as to what is required.
The terms included in a particular MSA or stipulated judgment vary from case-by-case and depend the issues involved in the case. For example, if parties to a divorce do not own any property together, the “property division” sections of the agreement will be very basic. If parties have children between them, there should be detailed provisions relating to child custody and child support, which should include a detailed parenting plan.
If the parties agree on the issue of spousal support, detailed provisions concerning the obligations of each party should be included.
An agreement might include provisions relating to future obligations of the parties, tax filings and consequences, a general waiver of liability, hold harmless provisions, which party gets what vehicle, college expenses for children, and so on.
We have seen Marital Settlement Agreements that are only a couple pages in length to extremely detailed agreements that border on one hundred pages.
If a party violates the terms of a stipulated judgment or marital settlement agreement, which are nearly always incorporated into a Judgment of Dissolution of Marriage, you have quite a few options to enforce the terms.
For example, you can file a contempt of court action against the other party. This is a motion that you file that states that there is a valid court order, the other party knew about the terms of the order, and the other party violated the terms. The court can put the violating party in jail or order them to pay a fine, among other things.
You can file a motion with the court seeking sanctions against the other party for violating the terms of the agreement.
You can file a motion with the court seeking that the court compel the other party to cooperate. For example, suppose a party agreed to provide certain personal property to the other party but failed to actual follow through with that agreement. You can file a motion with the court requesting sanctions against that party and an order that compels that party to provide the property at a certain date.
If the other party refuses to sign documents required under the terms of a written agreement, you can file a motion and ask the court to appoint an “elisor” to sign the documents on behalf of that party. In that case, the court clerk actually signs the document and it becomes a valid and enforceable legal document. For example, suppose a party was ordered to execute an Interspousal Transfer Deed to transfer a property to the other spouse and they refuse to actually sign that document. You can file a motion for an elisor and the clerk will sign the deed on behalf of that party.
In the event money is owed under a Marital Settlement Agreement, you can file a Writ of Execution with the court and seek to levy accounts or assets owed by the violating party.
In the event you are involved in a case where you and the other party agreed to the terms of your divorce or paternity action either in writing or on the record (i.e. terms read orally in court with court reporter) and the other party refuses to sign the Marital Settlement Agreement or Stipulated Judgment, the question is whether the terms read on the record are enforceable?
The answer to that question is yes, once you read the terms of an agreement into the record, the terms are enforceable and there is a mechanism to obtain a Judgment detailing those agreements.
Specifically, Cal. Code of Civil Procedure §664.6 provides that if agreement is written and signed or read into the record, either party (i.e. mother, father, wife or husband) can file a motion with the family court and have the terms of such agreement incorporated into a Judgment. Even under these circumstances the term of the Stipulated Judgment will be enforceable by the family court.
WARNING:
The terms of your Marital Settlement Agreement or Stipulated Judgment
Are not likely modifiable, particularly when it comes to Property Division!
Take great care in ensuring your agreement is properly drafted.
As mentioned above, the California Court System provides a template marital settlement agreement that is copied below. Again, we must reiterate that this is not our template, we do not necessarily advise using this template as every case has unique circumstances, and you should seek the advice of a qualified family law attorney to draft or review your MSA or stipulated judgment. Notwithstanding those warnings, below is the California Court’s template agreement:
MARITAL SETTLEMENT AGREEMENT1. INTRODUCTORY PROVISIONS
1.01 IDENTIFICATION OF PARTIES.
______This agreement is made between ____________________________, hereafter
1.03 DATE OF SEPARATION.
______The date of separation of the parties was ________________________________.
1.04 IRRECONCILABLE DIFFERENCES.
______Irreconcilable differences have led to the irremediable breakdown of the marriage,
and there is no possibility of reconciliation.
1.05 MINOR CHILD(REN) OF THE MARRIAGE.
______There are/is _____ minor child(ren) of the marriage of the parties. The minor
child(ren) are/is as follows:
NAME DATE OF BIRTH
________________________________ ________________________
________________________________ ________________________
________________________________ ________________________
________________________________ ________________________
________________________________ ________________________
1.06 PURPOSE OF AGREEMENT.
______Except as otherwise provided in this agreement, the purpose of this agreement is to make a final and complete settlement of all rights and obligations between the parties, including all property rights and, if applicable, all rights and obligations concerning child custody and visitation, child support, and spousal support.
1.07 WAIVER OF FINAL DECLARATIONS OF DISCLOSURE. ______Each party hereby waives the requirements of Family Code section 2105(a) that requires the parties serve on each other final declarations of disclosure and income and expense declarations. As required by Family Code section 2105(c), the parties hereby declare as follows:
.(a) Both parties have complied with Family Code section 2104 and the preliminary declarations of disclosure have been completed and exchanged;
.(b) The parties have completed and exchanged current income and expense declarations;
.(c) Each party has entered into this waiver knowingly, intelligently, and voluntarily; and,
.(d) Each party understands that by entering into this waiver he/she may be affecting his/her ability to have the judgment set aside as provided by law.
2. 2. CUSTODY AND VISITATION.
2.01 CONFIRMATION OF PRIOR ORDER. ______The parties’ custody and visitation order, filed on __________________ in the parties’ dissolution case, shall be confirmed and incorporated by reference as the custody and visitation provisions of this agreement.
2.02 CUSTODY. ______Legal Custody ____________Joint ____________Sole Legal Custody to _________________. ______Physical Custody ____________Joint; Primary to _____________________.
____________Sole Physical Custody to _______________.
2.03 PARENTING TIME/VISITATION.
______ (Name) ___________________________ shall have parenting time/visitation
with the minor child(ren) as follows:
______See Attachment “A”, consisting of _____ pages, incorporated herein by reference,
or as follows:
2.04 NOTICE OF CHANGE OF RESIDENCE.
______Neither party may change his/her residence or that of any minor child of the
parties without ____ days prior written notice to the other party.
3.01 CONFIRMATION OF PRIOR ORDER.
______A child support order was previously filed on _________________ in the _____
parties’ dissolution case or ____ in the Department of Child Support Services action,
Case No. __________________. This child support, in its entirety, shall remain in full
force and effect, and is hereby incorporated by reference as the child support provisions
of this agreement.
3.02 DEFER MATTER OF CHILD SUPPORT. ______The matter of child support is deferred to the Department of Child Support Services and is scheduled to be heard on ___________________ at _____________ a.m./p.m. Any of the parties that have been contacted by DCSS shall immediately, if not already completed, all documents sent to him/her by DCSS. Both parties shall appear at Court on the above date for the DCSS hearing.
3.03 RESERVATION OF CHILD SUPPORT. ______Neither party shall pay child support to the other. Each party shall provide the direct support for the minor child(ren) for those periods when the child(ren) is/are in his/her physical custody. The Court in the parties’ dissolution action shall reserve jurisdiction to order such support payable by one party to the other on a proper showing at some future time.
3.04 BASIC PAYMENT PROVISIONS. ______(Name)_________________________ shall pay to _____________________, as and for support of the minor (child)ren, the amount of $__________ per month, payable by wage assignment on the _________ day of each month, (_____ half on the first and half on the fifteenth of each month), commencing ________________. The child support amount is allocated between/among the child(ren) as follows:
_______________________________________________________________________. The parties’ incomes, parenting timeshare, and other circumstances upon which this support amount is based are as follows (or attached as Exhibit “B” consisting of ____ pages and incorporated herein by reference):
3.05 ADDITIONAL CHILD SUPPORT.
______As additional child support, _____________________ shall pay to ____________
(or ____ each party shall pay directly to) the provider half of the education and work-
related child care costs of the minor child(ren) beginning on
_______________________.
______Child support, as described above, shall continue until the first of the following events:
.(a) The child(ren) attains age 19, or has attained age 18 and either is not a full-time high school student or is self-supporting;
.(b) The child dies;
.(c) The child(ren) enters into a valid marriage, is on active duty with any of the armed forces of the United States of America, receives a declaration of emancipation under California law, or otherwise becomes emancipated by leaving home and becoming self-supporting;
.(d) The custodial parent dies and the other parent assumes custody of the child(ren); or
.(e) Further court order.
3.06 MAINTENANCE OF HEALTH INSURANCE FOR CHILD(REN).
______(Name)_____________________ shall maintain coverage for each minor child
under the medical and dental insurance provided through his/her employment. To
facilitate the use of such coverage for the child(ren), both parties shall cooperate fully
and in a timely manner, including, but not limited to, obtaining and providing all
necessary insurance cards and claim forms, completing and submitting all necessary
documents, and delivering all insurance payments. For purposes of duration and
modification, this provision shall be deemed part of the child support orders made by the
court in the parties’ dissolution action. If such insurance is or becomes unavailable,
he/she shall provide similar coverage, if any, available to him/her at no cost or reasonable
cost. If no insurance is available, both parties will pay equal portions of any medical
costs.
3.07 PAYMENT OF UNCOVERED HEALTH CARE EXPENSES.
______The parties agree that ____________________ shall pay all (or ____ each party
shall pay half) of the medical, dental, orthodontic, optical, psychiatric, psychological, and
other health care expenses of each minor child, to the extent not covered by insurance.
The party incurring the expense shall present to the other party an itemized statement of
costs accrued or paid, proof of payment of any costs paid by the party, and any necessary
information about how to make payment to the provider, within a reasonable time, but
not more than ____ days after accruing the costs. The reimbursing party shall make the
required payment or reimbursement within a reasonable time, but not more than ___ days
after notification of the amount due. For purposes of duration and modification, this
provision shall be deemed part of the child support orders made by the court in the
parties’ dissolution action.
3.08 CHILD SUPPORT STIPULATION ACKNOWLEDGMENTS.
______The parties declare the following with regard to their agreement regarding child
support:
.(a) The parties are fully informed of their rights concerning child support, including the right to have child support awarded in accordance with legislatively determined guidelines;
.(b) This order is being agreed to without coercion or duress;
.(c) The agreement is in the best interests of the child(ren) involved;
.(d) The needs of the child(ren) shall be adequately met by the stipulated amount;
.(e) The right to support has not been assigned to a county pursuant to section 11477 of the Welfare and Institutions Code; and no public assistance application is pending;
3.09 OTHER CHILD SUPPORT PROVISIONS.
______The parties agree to the following additional child support orders:
4.01 BASIC PAYMENT PROVISION. ______(Name)______________________________ shall pay to ___________________ for spousal support the sum of $________________ per month, payable in advance, on or before the ________ day of each month, commencing on _________________ (or _____ by wage assignment) and continuing:
.(a) Until either party’s death, the remarriage of the party receiving spousal support, or modification or termination by further court order, whichever occurs first.
.(b) Except by further court order, until ___________________ (date), either party’s death, the remarriage of the party receiving spousal support, or termination by further court order, whichever occurs first.
4.02 RESERVATION OF JURISDICTION. ______The court in the parties’ dissolution action shall reserve jurisdiction over the issue of spousal support payable to ___ Husband ___Wife, until the remarriage of that party, either party’s death, or modification or termination by further court order, whichever occurs first. Spousal support may be ordered payable following this reservation of jurisdiction only upon a proper showing of a change of circumstances.
4.03 TERMINATION OF JURISDICTION. ______ ____ Husband and/or ____ Wife hereby waive(s) and release(s) all rights and claims to receive support from the other party at any time. No court shall have jurisdiction to order spousal support payable by ____ Husband or ____ Wife to the other party at any time, regardless of any circumstances that may arise.
4.04 MAINTENANCE OF HEALTH INSURANCE FOR SUPPORTED SPOUSE. ______(Name) ___________________ shall maintain coverage for (name) ___________ _________________ under the medical and dental insurance currently provided through his/her employment until the effective date of the termination of the parties’ marital status, provided the coverage remains available until that date on substantially the same terms as at present. To facilitate the use of such coverage for __________________________, both parties shall cooperate fully and in a timely manner, including, but not limited to, obtaining and providing all necessary insurance cards and claim forms, completing and submitting all necessary documents, and delivering all insurance payments. If such insurance becomes unavailable to ____________________ before the marital status termination date on substantially the same terms as at present, he/she shall provide similar coverage, if any, available to him at no cost or reasonable cost.
5. 5. PROPERTY.
5.01 IDENTIFICATION AND CONFIRMATION OF SEPARATE PROPERTY.
5.01(A) HUSBAND’S SEPARATE PROPERTY. ______The following is/are the separate asset(s) and obligation(s) of Husband, to be confirmed to him as his separate property. Wife disclaims and waives any and all rights and interest in these assets. Husband shall pay the obligation(s) and hold Wife harmless from these liabilities (continued on Exhibit “C” if required, incorporated herein by reference):
5.01(B) WIFE’S SEPARATE PROPERTY. ______The following is/are the separate asset(s) and obligation(s) of Wife, to be confirmed to her as her separate property. Husband disclaims and waives any and all rights and interest in these assets. Wife shall pay the obligation(s) and hold Husband harmless from these liabilities (continued on Exhibit “D” if required, incorporated herein by reference):
5.02 IDENTIFICATION AND DIVISION OF COMMUNITY PROPERTY.
5.02(A) HUSBAND’S COMMUNITY PROPERTY. ______Husband shall be awarded and assigned, as a portion of his share of the community property, the following assets and liabilities. Wife transfers to Husband as his separate property all of her rights and interest in each asset. Husband shall pay all the obligations assigned to him and hold Wife harmless from each liability (continued on Exhibit “E” if required, incorporated herein by reference): 5.02(B) WIFE’S COMMUNITY PROPERTY. ______ Wife shall be awarded and assigned, as a portion of her share of the community property, the following assets and liabilities. Husband transfers to Wife as her separate property all of his rights and interest in each asset. Wife shall pay all the obligations assigned to her and hold Husband harmless from each liability (continued on Exhibit “F” if required, incorporated herein by reference):
5.03 PAYMENT TO BALANCE DIVISION.
______To achieve and equal division of the community property, _________________
shall pay to ____________________, on or before ________________(date), the sum of
___________________. If however, this sum is not paid in full on or before the due
date, ____________________ shall pay interest at the rate of ten percent (10%) annually
from the due date to the date of payment.
5.04 IN-KIND DIVISION OF LIABILITIES.
______Each party shall be assigned half of each of the following community liabilities:
______Each party shall pay and hold the other harmless from half of each liability.
6. THE FAMILY RESIDENCE.
6.01 TITLE.
______Pending sale, the parties shall hold title to the family residence located at _______
__________________________________, California, as tenants in common. As soon as
practicable after the effective date of this agreement, the parties shall duly execute,
acknowledge, and record a deed transferring title with respect to the residence from
themselves as joint tenants to themselves as tenants in common. The change of title to
tenancy in common, however, shall not be dependent on execution or recordation of such
a deed.
6.02 OCCUPANCY.
______ (Name) __________________________ shall have exclusive occupancy of the
family residence until the first of the following events:
.(a) The date of _____________ arrives, or as soon thereafter as possible;
.(b) The residence is no longer the residence of both _____________ and at least one child of the parties for whom a support obligation of _________________ then exists;
.(c) (Name) ________________________ dies;
.(d) (Name) ________________________ remarries;
.(e) The residence is condemned, totally destroyed, or destroyed to such an extent that it is not economically feasible to repair;
.(f) (Name) ________________________ fails to timely make payment on the encumbrance and the holder files a notice of default or otherwise takes action to make recourse to the security;
.(g) The residence is sold by mutual agreement of the parties.
6.03 MAINTENANCE, REPAIRS, AND IMPROVEMENTS. ______During (name) ______________________________ exclusive occupancy of the residence, he/she shall maintain the residence in good condition, normal wear and tear excepted, and shall be solely responsible for all costs of maintenance, repairs, or improvements in the amount of $__________________, or less. For any single item of maintenance, repair, or improvement costing over that amount, except as unavoidable due to emergency, ___________________ shall obtain the prior written consent of
________________ for such work, which shall not be unreasonably withheld. For items costing over the stated amount, __________________________ shall be solely responsible for the stated amount, and the remainder of the cost shall be borne equally by the parties.
6.04 RESPONSIBILITY FOR ENCUMBRANCES, TAXES, AND INSURANCE. ______During (name) ___________________________ exclusive occupancy of the residence, ________________________ shall be responsible for payment of the encumbrance and property taxes, and for maintenace and payment of the existing property insurance, and shall hold (name) _________________________ harmless from each liability. If ________________________ fails to timely make any payment,
________________ may do so and shall be entitled to recover from _________________ the amount paid, with interest at the rate of ten percent (10%) per annum from the date of payment. Neither party shall further encumber the residence in any manner without the other’s prior written consent. The remedy provided to _________________ in this provision shall be in addition to the right, if applicable, to an immediate sale of the residence, as provided in this agreement.
6.05 RESERVATION OF JURISDICTION.
______The court in the parties’ dissolution action shall reserve jurisdiction to make such
orders relating to sale of the family residence that are necessary to carry out this
agreement if the parties fail to cooperate or agree, including orders with respect to
provisions regarding the residence pending sale, the sale process itself, disposition of
proceeds, and tax consequences.
6.06 MODIFIABILITY.
______The provisions of this agreement with respect to the family residence are intended
as additional child support and may be modified; however, Family Code section 3808,
providing for a rebuttable presumption in favor of immediate sale of the residence on the
occurrence of certain specified events, does not apply.
7.01 DIVISION BY FURTHER ORDER.
______Based on ___ Husband’s ___ Wife’s employment during marriage with the
following employer(s) ____________________________________________________,
a community interest has arisen in the following
plan(s):_____________________________
_______________________________________________________________________.
The parties agree to and shall cooperate in the preparation of a Qualified Domestic
Relations Order or retirement benefits order for each plan, which proposed order(s) shall
set forth the respective community interests of the parties and govern the disposition of
benefits upon qualification by the plan(s). The court shall reserve jurisdiction over the
preparation of the order(s), and division of said retirement benefits.
_______________________________________________________________________, a community interest has arisen in the following plan(s):___________________________ _______________________________________________________________________. Under the terms of this agreement, that entire interest, including the right to name beneficiaries other than the employee’s spouse for death and survivor benefits payable under the plan, is being awarded to the employee-spouse. The non-employee spouse is informed that, under federal law or the terms of the plan, she/he may, but for this agreement, have become entitled to survivor rights or benefits payable by the plan. The non-employee spouse shall timely sign whatever documents, including but not limited to a stipulated qualified domestic relations order (QDRO), that are required to implement her/his waiver of spousal rights in the plan, including written consent to the employee spouse’s designation of one or more alternate beneficiaries. This provision does not waive any right expressly provided in any trust agreement or beneficiary designation executed by the employee spouse after the effective date of this agreement.
7.03 RETIREMENT BENEFITS WARRANTY. ______Each party warrants to the other that, to the best of his or her knowledge after checking with his or her employer, he or she is not a participant or beneficiary in or with respect to any benefit plan other than those disclosed and listed in this agreement. If either party becomes aware of his or her eligibility for or participation in any benefit plan not disclosed in this agreement that is based in any degree on service during the marriage and before separation, that party shall notify the other party of the existence of that eligibility or participation and authorize the plan to provide to the other party any information necessary to calculate the community interest, treating that interest as an omitted asset subject to the continuing jurisdiction of the court.
8. OTHER PROPERTY PROVISION.
8.01 DISPOSITION OF AFTER-ACQUIRED ASSETS.
______All assets acquired by either party after the date of separation of the parties shall
be the separate property of the party acquiring them, and each party disclaims and waives
any and all rights and interest in each asset acquired by the other after that date.
8.02 ALLOCATION OF INCOME TAX REFUNDS.
______Husband shall receive ________ percent of the anticipated refunds in connection
with the parties’ joint federal and state income tax returns for the tax year ________.
Wife shall receive ________ percent of the anticipated refunds in connection with the
parties’ joint federal and state income tax returns for the tax year ________.
______The parties stipulate to the following additional terms of this agreement:
10. PROPERTY WARRANTIES AND REMEDIES.
10.01(A) WARRANTY OF FULL DISCLOSURE OF EXISTENCE OF ASSETS. ______Each party warrants to the other that he or she does not have any knowledge of any community assets other than those disclosed and listed in this agreement.
10.01(B) REMEDY FOR BREACH. ______If either party has any knowledge of any community asset other than those disclosed and listed in this agreement, that warrantor shall transfer or pay to the warrantee, at the warrantee’s election, one of the following:
(a) If the asset is reasonably susceptible to division, a portion of the asset equal to the warrantee’s interest in it;
(b) The fair market value of the warrantee’s interest in the asset on the effective date of this agreement, plus interest at the rate of ten percent (10%) per annum from the effective date to the date of payment; or
(c) The fair market value of the warrantee’s interest in the asset on the date on which the warrantee discovers the existence of the asset, plus interest at the rate of ten percent (10%) per annum from the discovery date to the date of payment.
This provision shall not be deemed to impair the availability, in a court of competent jurisdiction, of any other remedy arising from nondisclosure of community assets.
10.02(A) WARRANTY OF FULL DISCLOSURE OF EXISTENCE OF LIABILITIES. ______Each party warrants to the other that he or she neither has incurred nor shall incur, on or before the effective date of this agreement, any liability not disclosed and listed in this agreement on which the other is or may become personally liable or that could be enforced at any time against an asset held or to be received under this agreement by the other party.
10.02(B) REMEDY FOR BREACH. ______If either party has incurred or does incur, on or before the effective date of this agreement, any liability not disclosed and listed in this agreement on which the other is or may become personally liable or that could be enforced at any time against an asset held or to be received under this agreement by the other party, that warrantor shall fully indemnify the other with respect to the obligation, including, but not limited to, any and all liability on the obligation, attorney fees, and related costs. This provision shall not be deemed to impair the availability, in a Court of competent jurisdiction, of any other remedy arising from nondisclosure of such liabilities.
10.03(A) WARRANTY REGARDING UNDISCLOSED GIFTS OR TRANSFERS.
______Each party warrants to the other that he or she has made no undisclosed gifts or transfers for less than adequate consideration of any community assets with fair market values over $250.00 without the other party’s knowledge.
10.03(B) REMEDY FOR BREACH. ______If either party has made any undisclosed gift or transfer for less than adequate consideration of any community asset with a fair market value over $250.00 without the other party’s knowledge, that warrantor shall pay to the warranted a sum equal to half of the fair market value of the asset transferred, with the fair market value to be determined, at the warrantee’s election, as of either (a) the effective date of this agreement or (b) the date on which the warrantee discovers the transfer, less any appreciation in the asset’s value attributable solely to acts of the transferee(s) and successor(s). The warrantor shall further pay to the warrantee interest at the rate of ten percent (10%) per annum from the date elected for determination of the fair market value of the asset to the date of payment. This provision shall not be deemed to impair the availability, in a court of competent jurisdiction, of any other remedy arising from undisclosed gifts or transfers for less than adequate consideration.
10.04(A) WARRANTY REGARDING AFTER-ACQUIRED LIABILITIES. ______Each party warrants to the other that he or she shall not incur, after the effective date of this agreement, any liability on which the other shall be or may become personally liable or that could be enforced against an asset held by the other party.
10.04(B) REMEDY FOR BREACH. ______If either party incurs, after the effective date of this agreement, any liability on which the other shall be or may become personally liable or that could be enforced against an asset held by the other party, that warrantor shall indemnify the other for any liability on the obligation, attorney fees, and related costs.
11. GENERAL PROVISIONS.
11.01 RELEASE OF LIABILITIES AND CLAIMS. ______Except as otherwise provided in this agreement, each party hereby releases the other from all interspousal obligations, whether incurred before or after the effective date, and all claims to the property of the other. This release extends to all claims based on rights that have accrued before the marriage, including, but not limited to, property and support claims. The parties have considered such claims in this agreement.
11.02 STATUS OF TEMPORARY ORDERS. ______All temporary orders previously rendered by the court in the pending dissolution action of the parties shall be deemed fully satisfied as to those acts whose performance was required on or before the effective date of this agreement and shall be deemed superseded by this agreement as to those acts whose performance was not so required.
11.03 WAIVER OF RIGHTS ON DEATH OF OTHER PARTY.
______Except for Wife’s rights under Paragraph 3.02 of this agreement, each party hereby waives the right to receive any property or rights whatsoever on the death of the other, unless such right is created or affirmed by the other under a will or other written document executed after the effective date of this agreement. Each party believes that he or she has received a fair and reasonable disclosure of the property and financial obligations of the other party. Each party’s waiver is intended to be an enforceable waiver of that party’s rights under Probate Code sections 140-147.
The rights waived include, but are not limited to, rights to any of the following:
.(a) Property that would pass from the decedent by intestate succession;
.(b) Property that would pass from the decedent by testamentary disposition;
.(c) A probate homestead;
.(d) The setting aside of exempt property;
.(e) A family allowance;
.(f) The setting aside of an estate;
.(g) An election to take community or quasi-community property against the decedent’s will;
.(h) The statutory share of an omitted spouse;
.(i) An appointment as executor or administrator of the decedent’s estate, except as the nominee of a third party legally entitled to make such a nomination;
.(j) Property that would pass from the decedent by nonprobate transfer, such as the survivorship interest under a joint tenancy, a Totten trust account, or a payable-on-death account; and
.(k) Proceeds as a beneficiary of any type of insurance policy.
11.04 ENTIRE AGREEMENT.
______This agreement contains the entire agreement of the parties on these matters,
superseding any previous agreement between them.
11.05 RECONCILIATION. ______If the parties reconcile, this agreement shall nevertheless remain in full effect
unless and until it is modified or revoked in a writing signed by both parties.
11.06 MODIFICATION BY SUBSEQUENT AGREEMENT.
______This agreement may be modified by subsequent agreement of the parties only by
an instrument in writing signed by both of them, an oral agreement to the extent that the
parties execute it, or an in-court oral agreement made into an order by a court of
competent jurisdiction.
11.07 NOTICE OF BANKRUPTCY FILING.
______If either party decides to claim any rights under the bankruptcy laws, that party
must notify the other of this intention in writing at least ten (10) days before filing the
petition. Such notice must include, but not necessarily be limited to, the name, address,
and telephone number of the attorney, if any, representing the party in that proceeding
and the court in which the petition shall be filed.
11.08 ATTORNEY FEES IN ACTION TO ENFORCE OR MODIFY AGREEMENT.
______Except as to reserved issues, the prevailing party in any action or proceeding to
enforce or modify any provision of this agreement, or any corresponding provision of a
subsequent judgment into which the provision is merged, shall be awarded reasonable
attorney fees and costs. For the moving party to be deemed the prevailing party for
purposes of this provision, at least ten (10) days before the filing of any motion he or she
must provide written notice to the other party specifying the alleged breach or default, if
capable of being cured, or the modification requested. The other party must then be
allowed to avoid implementation of this provision by curing the breach or default
specified or executing an agreement for the modification requested during the ten-day
period.
11.09 COOPERATION IN IMPLEMENTATION OF AGREEMENT.
______On demand of the other party and without undue delay or expense, each party
shall execute, acknowledge, or deliver any instrument, furnish any information, or
perform any other acts reasonably necessary to carry out the provisions of this agreement.
If a party fails to execute any document as required by this provision, the court may
appoint the court clerk or his or her authorized designee to execute the document on that
party’s behalf.
11.10 EFFECTIVE DATE.
______The effective date of this agreement shall be the date of its execution by the
second of the parties to do so.
.11.11 COURT ACTION.
______If a judgment of dissolution of marriage is obtained by either party, the original of
this agreement shall be attached to the judgment. The court shall be requested to do the
following:
.(a) Approve the entire agreement as fair and equitable;
.(b) Order the parties to comply with all of its executory provisions;
.(c) Merge the provisions relating to child custody and visitation, child support, spousal support, future acts with respect to property division, attorney fees and costs, and income tax, and only those provisions, into the judgment; and
.(d) Incorporate the remainder of the agreement in the judgment for the sole purpose of identification.
11.12 ACKNOWLEDGMENTS.
______Each party acknowledges that he or she respectively (1) is fully informed as to the
facts relating to the subject matter of this agreement, and as to the rights and liabilities of
both parties; (2) enters into this agreement voluntarily, free from fraud, undue influence,
coercion, or duress of any kind; (3) is representing themselves in an “in pro per” status
and is therefore not represented by legal counsel; (4) prior to executing this agreement,
either party may have this agreement reviewed by an attorney; and (5) has read,
considered, and understands each provision of this agreement.
The foregoing is agreed to by:
DATE: _____________ __________________________________________ (Husband’s printed name & signature)
DATE: _____________ __________________________________________ (Wife’s printed name & signature)
It is extremely important to have an attorney assist you with negotiating the terms of your Marital Settlement Agreement or Stipulated Judgment. The attorneys at Wilkinson & Finkbeiner have negotiated hundreds of family law judgments and know how to ensure that the terms you agree upon are in your favor and enforceable. For more information on your family law case and how to obtain favorable terms for your Marital Settlement Agreement or Stipulated Judgment, click here to contact us now.
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