I. Finishing up a divorce:
Attorneys will generally present, file or get signed some or all of the following, as needed, to complete a divorce. The Divorce Decree and “Austin” report form must be prepared and signed for every divorce case. The documents needed will vary, depending on the issues and needs of each case.
A. Documents to be submitted to the Court for your prove up:
You may hear us talk about doing a “prove up” to finalize the divorce. It is the brief hearing in front of a judge to get the Divorce Decree or other court order signed. If there is a disagreement about the form or content of an order, a motion to sign can be filed and set for hearing so the judge can rule on the issues. The following are documents often submitted to the court to be signed.
Final Divorce Decree Each party should receive at least an electronic copy. A certified copy may be needed for some things. Certified copies cost $1.00 per page, payable to the District Clerk. Either you or your attorney can obtain certified copies at any time after the Decree of Divorce was signed. A certified copy can be recorded with the County Clerk's Office, if necessary for real estate or other record purposes. If you want to change your name, you will probably need a certified copy to show to different agencies where you change your name.
Agreement Incident to Divorce (used in some cases) The “AID” is used most often to protect your privacy by detailing your financial terms of the divorce, but doing it in a private contract. A copy is usually not filed with the Court. Copies are given to each party and each attorney.
Order Withholding from Earnings for Child Support (wage assignment) A copy is given to you. The Clerk sends a copy to the child support office which will notify the employer.
Child Support Record of Support This is completed when child support is first ordered and may be revised at the end of the divorce, if there is a change. It is given to the Clerk of the Court.
“Austin Form” for Texas vital statistics. It is completed by one of the attorneys at the end of the divorce and is filed with the Clerk.
Qualified Domestic Relations Order A “QDRO” is a special court order used to divide certain retirement accounts. Once the court approves it, a signed and certified copy of a QDRO is sent to the Plan Administrator for the retirement account. If a QDRO is rejected by a Plan Administrator, an attorney will file a motion to correct the QDRO and will get a revised QDRO signed by the Court. That revised order is sent to the Administrator until it is approved. After the Plan approves the QDRO, the retirement account is divided and all future payments to each recipient from the account will go directly to the recipient.
B. Real Estate Documents
Before the prove up, any of the following that are necessary should be signed by the appropriate parties.
Special Warranty Deed
Deed of Trust
Deed of Trust to Secure Assumption
Real Estate Lien Note
Transfer of Lien
II. Clients may need to take a number of the following actions as the divorce is being completed.
For the following, each party should contact the relevant company and find out in advance what steps are necessary for that company.
- Send an Assignment of Escrow Funds letter to the mortgage company
- Send a Notice of Assignment of Homeowner's Policy with cover letter to the insurance carrier
- Arrange for assignment of utility deposits or transfer of service with each utility provider
B. Sale of Real Estate
If requested by a client, an attorney can assist by taking any of the following steps:
- Monitor the sale of the real estate.
- Review the real estate listing agreement with the client.
- If disposition of real estate is a taxable event, refer you to a tax attorney or accountant for help in determining your tax basis, which will have a big effect on whether you owe taxes or how much you owe.
- Make sure the title company gets any liens released.
C. Miscellaneous Transfer Documents
Clients may need to use one or more of the following documents to transfer ownership of certain assets. An attorney can provide the documents if so requested.
- Certificate of Title – vehicles
- Power of Attorney to transfer vehicle title
- Assignment of interest in business
- Special powers of attorney
- Documents for Assignment of Interest in property
Parties should review their policies and communicate with insurance companies to change coverage and/or beneficiaries.
E. Custody and Payment of Support
If requested, attorneys can help clarify custody and support issues and help reduce conflict by going through the court orders with each party.
- Review the powers, rights and duties of each parent.
- Review the possession schedules for each parent.
- Explain the due dates and proper notations on alimony and/or support checks.
- If necessary, provide names of persons to mediate or arbitrate conflicts.
F. Tax Matters
Each party should consider meeting with a tax attorney or accountant regarding the tax impact of the final decree, including:
Advice on dependency exemptions and IRS Form 8332. Tax consequences of property division (usually there isn't any). The deductibility or adjustment to tax basis relating to attorney's fees and costs.
G. Payment of Indebtedness
Each party should communicate with creditors, such as credit cards, mortgages, loans or other debts, and request notification of default on any joint debts.
Each party should make sure creditors always have the current address and phone numbers, and maybe email address, for each party. If there is a default, responding quickly may help prevent assets from being lost.
H. Name Change
Anyone with a name change should change public records, driver's license, Social Security, passport and any other official records. Business records should also be changed. Multiple certified copies of the final decree may be needed.
I. Military Retirement/Survivor's Benefit Plan
- The retired spouse will need to sign one or more of the following: a. Agreement to Name Former Spouse Beneficiary Under the Armed Services Survivor Benefit Plan b. Survivor Benefit Plan Election Statement for Former Spouse Coverage Form 20-237 c. Survivor Benefit Plan Election Change – Form 20-238
- Either attorney can provide: a. Certification of Finality of Court Order Under the Provisions of Title 10, U.S. Code, Section 1408 b. Letter requesting Survivor Benefit Plan Election
J. Civil Service Retirement
A notice letter should be sent to Office Personnel Management requesting direct payments to the non-member spouse.