Question: I’m already divorced, but I need some help. My ex husband and I drafted our own separation agreement, signed it, and moved forward with our uncontested divorce. Now, I want to do whatever I need to do to make sure I get my share of my husband’s retirement. Our agreement is very short, and doesn’t address retirement specifically, but I don’t want to lose the right to petition for whatever I might be entitled to receive. What do I do next?
I’m writing on this topic, because a woman called in with this question today. I hate it, because I’m pretty afraid that I have to give an answer that she won’t want to hear.
In a divorce, the whole point of negotiating a separation agreement is to divide all the assets (and liabilities, of course, but here we’re really just talking specifically about retirement assets) in the marriage. A separation agreement is supposed to be a permanent adjudication of everything; you’re not supposed to agree with respect to some things and then come back and fight over other things later on.
In most cases, only things relating to the kids are modifiable. Specifically, child custody, visitation, and child support will be modifiable based on a material change in circumstances. Why? Well, because the whole point of determining anything—custody, visitation, or support—is to come up with an arrangement that is in the best interests of the child (or children) involved. It’s not in a child’s best interest to have a static agreement with respect to custody, support and visitation; a better (and more realistic) approach is to re address particular sections as necessary. After all, a lot changes as the child grows and changes, and what might have been appropriate or ideal for a younger child might not be appropriate or ideal as the child gets older.
Divorce, on the other hand, isn’t designed to constantly evolve in order to address your best interest. It’s designed to help you be able to take advantage of whatever you’ve earned or acquired during the marriage—after divorce, though, you’re more or less on your own. Though you may continue to receive spousal support payments or something of that nature, that’s still by virtue of what you earned from your contributions during the marriage. Whatever happens after divorce is, generally speaking, irrelevant. Once you’re already divorced, things change. What you can go back and petition for later changes. Really there’s very little that, once you’re already divorced, you can change.
That’s why we always encourage clients to be so careful about the agreements they sign. It’s really a “one and done” kind of thing. And there’s really no hope of overturning a bad agreement, either—once an agreement is signed, it’s a done deal. It’s virtually impossible to overturn an agreement after it has been signed. If you’re wondering whether your agreement might be overturn-able, you may want to come in for a consultation to discuss the specifics of your case, but definitely keep in mind that your chances are slim and none—and it’s quite possible that the attorney you meet with will tell you not even to waste your money trying to fight the agreement.
Why? For a lot of reasons, but mostly because judges want to encourage private people to negotiate their own settlements (which keeps them out of court and promotes their general satisfaction with the outcome). By refusing to overturn agreements later, judges reinforce the idea that you can negotiate and rely on an agreement you’ve negotiated yourself. If agreements were overturned, people would stop negotiating them—they’d be afraid that they would rely on an agreement to their detriment, or that they’d just waste time. Judges want people to handle their own issues, and want to keep the dockets clear for the cases that really can’t be settled. So, most of the time, agreements stand. Even really, really, ridiculously bad agreements. It’s just the way it is.
That’s also why it’s a little dangerous to negotiate your own agreement. You don’t know what you’re missing necessarily—or what your rights and entitlements would be under the law. I’ve seen agreements women drafted for themselves that were far, far worse than what their husband’s attorney would have drafted for them. It’s so risky!
Of course, that’s not to say it’s not do-able, or that people don’t do it. People do it all the time, and, in many cases, it turns out totally fine. In this woman’s case, though, I suspect that it won’t turn out fine at all.
If you’re interested in drafting your own separation agreement, make sure you get the information you need up front. Consider attending one of our monthly divorce seminars, requesting a free copy of one of our divorce books, or getting a copy of our free report “Why DIY? The Advantages and Disadvantages of Do-It-Yourself Divorce”.
So, what happened here? To know for sure, I’d have to see all the documents in this woman’s case. It’s possible that the separation agreement says that a particular issue is reserved for later, but that’s unusual—especially if she really did draft the agreement herself.
Most agreements include provisions saying that equitable distribution is waived, except as provided by the agreement, or that the agreement represents a full and complete distribution of the assets and liabilities of the parties. If it doesn’t say that, it’s likely that the final decree of divorce or complaint filed with the court have similar language. If that’s the case, she’s not going to be able to do anything now to go back and secure her right to receive any of his retirement.
It’s really important that you think of all of these things ahead of time; it’s usually not possible to go back later (again, unless you specifically preserved that right already) and ask for something additional, especially after you’re already divorced. Divorce is, generally speaking, pretty much a one stop shop—whatever you aren’t able to secure, you lose. Once you sign a separation agreement, it’s already pretty unlikely that you’ll be able to go back and re-negotiate; once you’re already divorced, though, it becomes even more difficult.
I hate to give people bad news. I hate when people draft agreements that are worse than what their husband’s attorney would draft for them. And, to be honest, I really don’t know all the details of this particular woman’s case. She called in with a question, and I told her I’d really have to review all the documents to know for sure what’s going on. But (again) if I’m being honest, I suspect that she has given away her right to request a share of his retirement now.
By all means, draft your own agreement. But be sure you talk to an attorney about it first. I hear your objection: But attorneys are so expensive!
I ask you, though—how much do you think it costs this woman to lose entirely her right to receive any portion of her husband’s retirement?
Tens of thousands of dollars? Hundreds of thousands of dollars? Millions of dollars? Anyway, it’s a lot.
Besides, you don’t have to hire an attorney to talk to one. That’s why we offer consultations. You can have an initial consultation with any of the attorneys in our office for $285, and then, if you need to come back later to ask a couple more questions, you can meet with them at their hourly rate. Most attorney hourly rates in our area range between $200-500 an hour, depending on how expensive the firm is and the overall experience of the attorney in question. We don’t require that you have a retainer agreement unless you want us to draft something or appear in court on your behalf (and then it’s mostly because our malpractice insurance requires that we have a retainer agreement). To answer questions or just to look at a document you’ve drafted, you can talk to an attorney on an as needed basis.
Just because you want to do it on your own doesn’t mean that you should do it entirely without the help of an attorney. Consult with an attorney, ask questions, and then figure out whether your agreement will protect you in all the ways you expect it to later on down the road. Don’t accidentally give up your right to a big money asset (like your share of his retirement) just because you didn’t want to pay a little bit of money up front. Once you’re already divorced, it’s too late to raise these issues!
For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.