Documenting property settlement

[thebeck]

My husband and I are filing for divorce next week.  Neither of us is being represented by an attorney since we have been able to come to an agreement.  We have created a property settlement agreement which was created via an online site.   There are a couple of issues that we would like to make sure won't cause us legal trouble in the future (like in case one of us died).  

1) I am keeping the family home since I will have primary physical custody of our 2 children.  I do not have to buy my husband out until our youngest childs 19th birthday.  He will remain on the mortgage for at least 4 more years due to a prepayment penalty.  I cannot afford the home at this time without extra help beyond mandated child support.  

We have agreed on an extra $300/month which is equivalent to 13% of the required house payment.  This was being added to the child support order.  My husband would like to be compensated for his contribution when the house is sold or his interest is bought out.  Do you have any suggestions on how to document this to protect our interests?

2) We have 2 timeshare properties.  One was bought before we were married and one while we were married.  They are both deeded as joint tenants.  We would like to keep both timeshare properties and split the maintenance fees and the usage evenly.  Again, any suggestions on the best way to document this?

Thank you for your input.

[socrateaser]

>We have agreed on an extra $300/month which is equivalent to
>13% of the required house payment.  This was being added to
>the child support order.  My husband would like to be
>compensated for his contribution when the house is sold or his
>interest is bought out.  Do you have any suggestions on how to
>document this to protect our interests?

Questions:

1. In what manner is title currently taken (joint tenants, husband and wife, etc.)?

2. Does the manner in which title is currently taken accurately reflect both of your investments into the property, or

3. Have you agreed on each of your respective interests in the realty?

4. In short, if you had the money to buy the property today for CASH, what would the agreed-upon selling price be?

>2) We have 2 timeshare properties.  One was bought before we
>were married and one while we were married.  They are both
>deeded as joint tenants.  We would like to keep both timeshare
>properties and split the maintenance fees and the usage
>evenly.  Again, any suggestions on the best way to document
>this?

Questions:

1. If one of you dies, the joint tenant will own the timeshare outright. Is this what you want?

2. If one of you were to buy both timeshares from the other today, what would be the price for each sale, and how much would each of your receive on each property?

[thebeck]

Please see answers in line

>We have agreed on an extra $300/month which is equivalent to
>13% of the required house payment. This was being added to
>the child support order. My husband would like to be
>compensated for his contribution when the house is sold or his
>interest is bought out. Do you have any suggestions on how to
>document this to protect our interests?

Questions:

1. In what manner is title currently taken (joint tenants, husband and wife, etc.)?

Husband and wife

2. Does the manner in which title is currently taken accurately reflect both of your investments into the property, or

3. Have you agreed on each of your respective interests in the realty?

We currently have 30% equity in the property (agreed value = $580K)which we are splitting.  So when I do sell or buy out his interest, he will receive 15% of the amount the home is appraised at, but not less than $85K.  This is without considering the extra $300 he is giving me.

4. In short, if you had the money to buy the property today for CASH, what would the agreed-upon selling price be?

$580,000.  He would receive $87,000.

>2) We have 2 timeshare properties. One was bought before we
>were married and one while we were married. They are both
>deeded as joint tenants. We would like to keep both timeshare
>properties and split the maintenance fees and the usage
>evenly. Again, any suggestions on the best way to document
>this?

Questions:

1. If one of you dies, the joint tenant will own the timeshare outright. Is this what you want?

Yes, that is what we want.  

2. If one of you were to buy both timeshares from the other today, what would be the price for each sale, and how much would each of your receive on each property?

Timeshare 1 = $9000
Timeshare 2 = $10,000.
Would owe the other person $9500.

[socrateaser]

This was not a simple project.

OK, first I STRONGLY suggest that you do not make the $300 part of the child support payment, because child support becomes the property of the receiving parent on the date that it becomes due and payable, thus, the paying parent would receive no increase in equity for any payments made, and he would not be able to take a tax deduction for the interest.

Obviously, if this is what you intend, then you can do as you like, however, if I were your husband, I'd never agree to the deal. Anyway, this is how I would structure the settlement for the home:

1. The parties agree and the court hereby orders as follows, regarding the subject realty legally described as:

(enter legal description of subject property)

2. Wife shall be entitled to occupy the subject realty as her principal residence until all of the parties' minor children have been emancipated or reach 19 years of age, whichever occurs first. Immediately thereafter, or in the event that Wife ceases to occupy the realty for her principal residence, as measured by Wife's voluntarily vacating the premises for a consecutive period greater than one calendar month, or in the event that any mortgage secured by the property is in default for more than one calendar month, the property shall forthwith be listed for sale with a real estate broker licensed to do business within the jurisdiction where the property is located, at a price reasonably calculated under all the circumstances to result in a sale at fair market value within 90 days. At close of escrow, any net proceeds of sale shall be distributed equally between the parties.

3. During the period that Wife occupies the realty as her primary residence, Husband agrees to contribute $300 per month towards payment of the first mortgage on the property. Said contribution shall be Husband's only responsibility with regard to the realty during this time period, however Husband shall be entitled to copies of any documents, receipts, notices, etc., reasonably necessary to permit Husband to protect his interest in the realty. Wife shall be responsible for payment of all other loan amounts, taxes, insurance utilities, maintenance, homowners association fees, etc., and neither party shall hypothecate, or otherwise convey their right, title or interest in the realty, without the express written consent of the other party.

In the event that one party is unable to contribute according to the requirements stated in paragraph 3, above, the other party may cover those costs, and any amounts actually paid shall be offset by reimbursing that party with an equivalent amount out of the other party's net proceeds of sale due on closing of the subject realty.


Both parties are further ordered to act in each other's best interests in all things concerning the subject realty.

OK, now for the timeshare:

4. The parties are joint tenants, with rights of survivorship, in two timeshare interests, described herein as follows:

(enter legal description of each property)

5. The parties agree and the court hereby orders, that the parties shall continue to own the two timeshares, as currently titled, and that they shall each be responsible for one half of the actual costs necessary to maintaining and protecting their joint interests in the timeshares. In the event that one party is unable to contribute to the actual costs of ownership for the timeshares, the other party may cover those costs, and any amounts actually paid shall be offset by reimbursing that party with an equivalent amount out of the other party's net proceeds of sale due on closing of subject realty described in Paragraph #1, above.

6. The parties agree, and the court hereby orders, that the schedule attached as Exhibit #?, shall specify each party's right to the use of each timeshare property, and shall be the default method of determining each party's right to occupancy, in the absense of the other party's express written consent to the contrary.

7. In the event that the parties determine to sell either or both timeshares, then, in the absense of agreement between the parties on the method and timing of sale, the sale shall be conducted in a manner substantially equivalent to the method specified in Paragraph #2, above, but in any case each party shall be entitled to one half of the net proceeds of sale upon close of escrow. Nothing in these orders shall be construed as to limit either party's rights to sell their interest in the timeshare to the other party, however, neither party shall hypothecate or otherwise convey their interest to a third party without the other party's express written consent.

8. Both parties are further ordered to act in each other's best interests in all things concerning each of the timeshares.

9. The rights and interests created under this property settlement shall not merge into the judgment, and shall be enforceable both on the contract and on the judgment via the court's contempt powers, and the court shall retain jurisdiction to modify and/or reform this settlement as necessary to achieve the original intent of the parties as stated herein.

(be careful if you renumber the paragraphs, because I refer to them directly in the text of the order, so you'll need to change the references, too)

[thebeck]

Thank you for all your input.  It was very valuable