PROPERTY AND SETTLEMENT AGREEMENT
THIS AGREEMENT AND STIPULATION, in accordance with 20-109 and 20-109.1 of the code of Virginia(1950), as amended, entered into the 26 day of June,2013, by and between Husband and Wife.
WHEREAS, Husband and Wife were lawfully married on April 1, 1994, in Louisa County, Virginia, and in consequence of difference having arisen between them, the parties separated on December 1, 2012 and have continued to live separate and apart since said date; and,
WHEREAS, there were three children born to the parties during the marriage namely: I will not name the kids in this.
WHEREAS, Husband and wife recognize the each have certain rights and obligations growing out of their marital relationship and intend that this agreement and Stipulation shall settle and adjust said rights and obligations and all claims that either party may have against the other or against the property, whether presently held or a acquired in the future, or the other and to settle the issues relating to the minor children of the parties: and,
WHEREAS, This Agreement is entered into voluntarily, without duress or coercion for valuable consideration, after due and considered deliberation, and each party has been fully advised of the financial and personal status of the other, no representation of fact or otherwise having been made by either party to the other except as herein expressly set forth , and equitable and not unconscionable; and, Wife is represented by an lawyer and Husband is represented by no one
NOW,THEREFORE, in consideration of the foregoing and of the mutual promises and agreements herein contained, the parties agree as follows:
1.1 Separation: It shall be lawful for each party hereafter to live separated and part from the other party at such place or places as he or she may from time to time choose or deem fit.
1.2 No Interference. Each party shall be free from all interference, authority, and control, direct or indirect, by the other, as fully as if he or she were single or unmarried.
1.3 Mutual Release. Subject to the provisions of this Agreement, each party has released and discharges, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators, and assigns, releases and discharges the other of and from all causes of action, claims, right, or demands whatsoever, known or unknown, now or in the future, in law or in equity, which either of the parties ever had, may now have or may in the future have against the other, including, but not limited to, dower, curtesy, inheritance, or any rights in the elective share in the augmented estate of the other party as set forth in Section 64.1-16.1 throught16.4 of the 1950 Code of Virginia, as amended; except as set forth in this Agreement, and that either party may petition any Court having lawful jurisdiction for a Final Decree of Divorce a vincula matrimonii in accordance with Article V of this Agreement.
1.4 Conclusiveness of Agreement. Husband and Wife understand that "Separate Property" is defined as (i) all property, real and personal, acquired by either party prior to the date of the parties' marriage; (ii) all property individually acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the party:(iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate property pursuant to section 20-107.3 (A) (3) of the 1950 Code of Virginia, as amended. Income received from separate property during the marriage is separate property if not attributable to the personal effort of rather party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributed to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.
Husband and Wife further understand that " Marital Property" is defined as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entireties, or otherwise; (ii) that part of any property classified as marital pursuant to section 20-107.3 (A) (3) of the 1950 Code of Virginia, as amended; and (iii) all other property acquired by the parties from the date of the marriage to the date of the last separation of the parties and which is not separate property as defines above.
Husband and Wife further understand that for the purposes of achieving an equitable distribution of marital property, both parties are deemed to have rights and interests in the marital property.
With the forgoing in mind, Husband and Wife agree that this Agreement is a full and complete settlement f all property rights between them and their to equitable distribution pursuant to section 20-107.3 of the 1950 Code of Virginia, as amended and from the time of execution of this Agreement neither Husband nor Wife shall have any interest of any kind or nature whatsoever in or to any of the marital property of the parties or the property of the other except as provided in the Agreement and Stipulation.
1.5 Additional Instruments. Each of the parties shall from time to time, at the request of the other, execute, acknowledge, and deliver to the other party any and all future instruments that may be required to give full force and effect to the provisions of this Agreement.
1.6 Tax Analysis. Husband and Wife acknowledge that the usual and customary method for determining tax liabilities to employ a competent individual, trained in taxation evaluation and analysis, and that they have been advised that the surest way of determining tax liabilities and responsibilities is to hire such an individual to review their particular facts and circumstance, regarding tax issues. Therefore, each party is left to retain the service of such a professional, at their discretion.
1.7 Modification and Waiver. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. Failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.
1.8 Discovery Not Used Because of Cost: Husband and Wife agree this Agreement was negotiated and entered into based of his/her personal knowledge and access to the other's books, records and files with little or not use of any of the discovery procedures available under the law because of the costs involved. Husband and Wife further agree that each has considered the discovery procedures available such as written question to the other party, sworn statements which my be obtained from witnesses including the other party and the availability process to summon written papers, put have weighed the potential value of the information watch might be obtained from witnesses including the other party and the availability process to summon written papers, but have weighed in potential value of the information and concluded that use od such discovery procedures is too costly and, therefore, have elected not to use such procedures.
1.9 Valuation. Husband and Wife acknowledge that the usual and customary method for determining fair value is to employ a competent individual trained in valuation techniques and that they have been advised that the surest way of determining value is to hire such an individual for appraisal of the property listed herein. Notwithstanding the foregoing, Husband and Wife have elected to agree on the vale of their marital property without employment of a appraiser, in order to save cost, and, in so doing, have ignored the sound advice of their attorneys and assume full responsibility for the results thereafter.
1.10 Effect of Reconciliation. In the event of reconciliation and resumption of the marital relationship between the parties or subsequent separation, the provisions of this Agreement for settlement of property rights, spousal support, debt payments and all other provisions not relating to their children shall nevertheless continue in full force and effect without abatement of any term or provision hereof, except as otherwise provided by written agreement duly executed by each of the parties after the date of reconciliation.
1.11 Entire Agreement. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants, or undertaking other than those expressly set forth herein.
1.12 Situs. This Agreement shall be construed and governed in accordance with the law of the Commonwealth of Virginia.
1.13 Partial Invalidity. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions of this Agreement shall nevertheless continue in full force and effect.
1.14 Binding Effect. Except as otherwise started herein, all provisions of this Agreement shall be binding upon the respective heirs next of kin, executors,
agents, assigns and administrators of the parties. By the execution of this Agreement, the parties hereby revoke any and all prior settlement agreements heretofore executed by and/or between the parties, whether in writing or by oral agreement.
1.15 Counterparts. The parties agree that this Agreement may be executed in two or more counterparts, each of which shall constitute an original and binding copy of this Agreement, albeit one and the same instrument. Photocopies of this Agreement shall be binding as the original.
2.1 Tangible Personal Property. The parties will divide between them, to their mutual satisfaction, all personal effects, household furniture and furnishings, and other articles of personal property heretofore used by them in common.
2.2 Real Estate- Marital Home. The marital home is located at 812 N. Aspen Street, Culpeper, Virginia 22701. The property is worth approximately $95,000.00 and has a debt against it in the approximate amount of $ 200,000.00. The property is in Wife's name only and Wife and Wife is solely responsible for the debt secured by the deed of trust currently against the residence. The marital home is allotted to Wife, and Wife agrees to assume responsibility for the debt currently secured by the marital residence and indemnify and hold Husband harmless therefrom. Husband forever waives any right, title or interest he may have in the marital home.
2.3 Automobiles/Recreational Vehicles.
The 2012 Toyota Prius automobile shall become the sole and separate property of the wife. Wife agrees to assume sole responsibility for the debt thereon and to hold the Husband harmless from any liability by reason of his obligation thereon.
The 2004 Isuzu Ascender shall become the sole and separate property of the wife.
Each party shall remain and be fully and individually responsible for the payment of any and all costs incidental to ownership of their respective vehicles, including maintenance, insurance and the repayment of any and all loans arising from said ownership, and each party shall release, indemnify, and hold the other party harmless as to these obligations. Upon demand, each party shall promptly sign over any title of the automobiles to the other party to effectuate the terms of this paragraph. Each party shall further execute a special power of attorney authorizing the other party to execute any registration, title or their document necessary to permit said party to license, register or maintain in operation their respective automobile(s), or to transfer title of said automobile to the appropriate party.
Each party shall maintain their own automobile insurance policy as of the date of execution of this agreement.
( there was some change in this part and her it is)
The 2004 Isuzu Ascender shall become the sole and separate property of the Husband. I was asking for the 2004 Isuzu Ascender and she will have to pay for the insurance until the end if the policy and that is August 14,2013
2.4 Omitted Property. Husband and Wife have attempted, and have used due diligence, to include within the provisions of this Agreement all property owned by them jointly or individually. Each party realized, however, that some property may have inadvertently been omitted from this Agreement.
Notwithstanding such omission, Husband and Wife agree that any omitted property, real or personal, shall in no manner affect the validity of this Agreement, which shall remain fully binding and enforceable. The parties agree that any after-discovered property jointly owned by the parties may agree, or by the Court of competent jurisdiction. Any after-discovered property owned by either of the parties individually and omitted from this Agreement shall continue to be owned by that party free and clear from any claim by the other.
2.5 Outstanding and Future Obligations. By execution of this Agreement, each party agrees to be fully and individually responsible for any and all obligations individually incurred by him or her prior to the date of the parties' separation and from the date of the parties' separation, forward. Each party agrees to defend, indemnify, and save the other harmless from any suit or claim asserted against him or her on account of any such debt or obligation. Further, Husband and Wife agree that neither shall in any manner pledge the debt of the other.
2.6 Bankruptcy. It is understood, mutually covenanted and mutually warranted that none of the financial duties and responsibilities of the parties to each other specified or referenced herein shall be dischargeable in bankruptcy as each party has given bona fide consideration and relinquished marital rights for same. The debts shall survive the filling of any petition in bankruptcy by either party, whether voluntary or involuntary, and all proceedings taken thereunder, as well as general assignment for the benefit of creditors or other processing's based on insolvency, and claims hereunder shall at all times remain in full force and effect and enforceable until performed and discharged in accordance with the terms of this Agreement. The parties further specifically intend any hold harmless or debt agreements to be in the nature of the payment of alimony or spousal support and shall not be dischargeable in bankruptcy as it is not a division property or a property settlement. Such a duty arising hereunder is the enforcement of a marital duty in accord with public policy.
The debtor spouse currently has the financial ability to meet his or her obligations under this Property Settlement Agreement and that the needs of the creditor spouse and children outweigh the burden on the debtor spouse of satisfying the obligations.
The creditors spouse shall be entitled to attorney's fees and costs incurred in protecting his or her rights to support in a bankruptcy proceeding and if he or she substantially prevails in a non-dischargeable.
The debtor spouse shall continue to perform his or her non-support obligations under this Property Settlement Agreement until there has been a determination that such obligations are dischargeable.
2.7 Bank Accounts. The parties have agreed between them, to their mutual satisfaction, as to ownership, possession, and use, of any and all monies, securities, notes, certificates of deposit, or which may have been on deposit in the past, and named accountholder shall be the sole owner of any such account now in his/her own names.
2.8 Other Assets. Wife has a 403(b) retirement account with Fauquier Hospital with an approximate balance of $ 10,000.00. Husband shall be entitled to 80% of this retirement account and Wife shall be entitled to 20% of this retirement account. Husband shall be solely responsible for the cost of transferring the portion of the account allotted to him, including the preparation of any Qualified Domestic Relations Order regarding the division of this account.
( There was an change to this 2.8 Other Account: wife has two Retirement accounts. I was guessing it was around 30,000.00 in the other account but what ever is the in the account I will be getting 60% of this retirement and she will be getting 40% of the retirement.
2.9 Tax Returns and Child Tax Dependency Exemption. For tax years 2013 and every year thereafter, the parties shall file separate Federal and State income tax returns. The parties agree that wife shall be entitled to the tax dependency deductions for the minor children for federal and state income tax purposes.
MADE CHANGES TO THIS ( 2.9)
The parties agree that in even years wife will be entitled to the tax and husband will do the odd years
2.10 Social Security. This agreement shall not be construed in any way to deny the right of either party under the Social Security Act as set forth in Title 42, United States Code, as it applies to the status of a spouse or former spouse.
3.1 Spousal Support. The parties acknowledge that they have considered all of the factors set forth in Section 20-107.1 of the 1950 Code of Virginia, as amended, including, but not limited to, the earning capacity, obligations, and needs and financial resources of each other, the education and training, of each other and ability and opportunity of each to secure such education and training, the standard of living established during the marriage and the duration of the contributions, monetary and non-monetary, of each to the well-being of the family, the property interests of each, the provisions made with regard to the parties' property according to the terms of this agreement, and such other factors as are necessary to consider the equities between them. After considering the circumstances of each in light of these factors, and giving due regard to the ability of each party herein to provide for his or her own support and maintenance, the parties agree as follows:
HUSBAND AND WIFE FOREVER WAVIVE, NOW AND FOREVER, ALL RIGHTS OF SPOUSAL SUPPORT AND MAINTENENCE OR ALIMONY AGAINST EACH OTHER.
Wife shall maintain health insurance coverage for husband until entry of a Final Decree of Divorce between the parties.Each party shall be responsible for their own medical bills not covered by insurance
( I was asking for spousal support of 600.00 a month and the lawyer of her cross it out and said this will never happen and she put her name by it and I didn't so i don't know if I have a leg to stand on or not if I ask for it)
4.1 Child support, Custody and Visitation Rights.
(a) Child Support: To be determined once Husband has obtained employment.
(b) Custody: Wife shall have sole legal custody and primary physical custody of their minor children.
( Change were made to this matter and here they are. Joint legal custody together and primary physical custody to mother. he reason that is because I am looking for a place to live so I will want that to change once O find a place.)
(c) Visitation: Husband shall have visitation with the parties' child Jamie as recommended by Jamie's counselor and visitation with Shawn and Michael as mutually agreed to between Husband and Shawn and Michael.
(Changes to that is stated Visitation with all kids as mutually agreed w/children Jamie as permitted by JDR Court. whet to court and found out that they were trying to get the counselor to make the call and he said that he could not and then her lawyer was saying that the 18yr should be there when it is a stay over and I said that the 18 should not be in charge and that I would communication with the counselor when I would like to get him to see that will be ok on where I will be taking him and let the counselor now where I will be staying.)
( Also Husband default daycare if wife is working. Have the kids during the day if possible when she is working the night before we both agree on this matter).
The parties shall confer with each other on all important matters pertaining to the health, welfare, education, and upbringing of the children, with a view of arriving at a harmonious policy calculated to promote the best interest of the children.
Each party shall send copies of the report cards of the children which will be reviewed before being returned to the school, and school papers to the other party. Each party shall notify the other of any public event in which the children are a participant, for example, graduation or school plays, sporting events, so that the children may benefit from the demonstrated interest of both parties.
Both of the parties shall have access to the children by telephone at all reasonable times.
Neither party shall do anything which may estrange said children from the other or hamper the natural development of the love of the children for both parties.
Each of the parties agrees to keep the other informed at all times if either of them has knowledge of illness or accident or other circumstances seriously affecting the welfare of the children he or she shall promptly notify the other of said circumstance.
( Here is what i was asking in this matter also. communication on the three kids on when there appointment are and I would like to be there when they are if I can go.)
4.2 Health Insurance: The wife agrees to maintain the minor child as beneficiary of her present medical/hospitalization policy for so long as she may be entitled to said coverage and has a duty of child support. The parties agree to share equally the cost of any medical or dental expenses(including orthodontia), and mental health services of the child not covered by said insurance.
( Changes that I was asking for and this is what I put down on the paper. Husband asking to keep me on her insurance and the lawyer put this done beside it until final decree of divorce and I sign it but can I change this).
5.1 Subsequent Divorce If a Final Decree of Divorce a vincula matrimonii shall ever be awarded either party, Husband and wife shall agree to petition the court to approved, ratify and incorporate the provisions of this Agreement. To the extent permitted by the court, any such Final Decree shall contain language ordering compliance with all the terms and conditions of this Agreement.
5.2. Attorney's Fees: Each party agrees to pay their own attorney's fees incurred by themselves in connection with the preparation of this Agreement and for any action for divorce a vincula matrimonii in accordance with paragraph 5.1 of this Agreement. The parties further agree that in the event either party defaults under the provisions of this Agreement, the defecating party shall be liable for all expenses incurred by the substantially prevailing party in connection with the enforcement of this agreement, including, but nor limited to, all legal fees, court costs , and travel expenses.
WITHNESS THE FOLLOWING SIGNATURES AND SEALS
WE BOTH SIGN THIS AGREMMENT.
Here are my questions to this I would like to get answer.
1. I would like to see if possible that i made the right chose on this.
2. I would like to know what right do i have to try to get the money from her retirement plan that was said in this.
3. On the visitation right do is say that I have to have someone to stay with me and my one son for overnight.
4. Also I would like to know if there are medical bill out there before I sign this Agreement do I have to pay for them because my wife is saying that I do and she is looking for the money and her lawyer also said that I am not paying child support right now so I should pay for it.
5. I would like for someone to tell me if this is a good Agreement id not what would I need to do.
1 Answer from Attorneys
It's unlikely (in my opinion) that even if you submitted the above as a paid question, that you would be lucky enough to find an attorney in this forum willing to respond to it.