3 Mistakes Women Make Drafting Separation Agreements

Posted on Aug 24, 2016 by Katie Carter

We’ve talked about it before, and we’ll talk about it again. Women all over Virginia (and, I assume, all over the rest of the country) are drafting their own separation agreements rather than hiring attorneys to do it. The reality is that there are many mistakes women make drafting separation agreements.


Statistically, most people hire attorneys, of course, but there’s also a fair number of people for whom hiring an attorney just isn’t possible—for financial or other reasons. Those people also often fail to qualify for legal aid or other legal assistance, and there’s no such thing as getting a court appointed attorney to represent you in your divorce or custody case. I know that probably seems unfair, but there’s nothing I can do about it—it’s just the way the law is.
What does it mean for those people? Do they just not get a divorce because they can’t afford to hire an attorney, get one through legal aid, or have one court appointed to represent them? Of course not! Most of them try to represent themselves (with varied degrees of success) so that they can get the brand new fresh starts they’ve been imagining.
So, for all the people who are doing it—that is, drafting their own separation agreements—there are more who are making big mistakes than there are ones who are doing it flawlessly. That’s probably about what you’d expect—after all, people DO hire attorneys for a reason!
People who try to negotiate things on their own make a ton of mistakes. It’s not their fault; it’s not like they’ve ever handled their own divorces before. And even when I see people do a good job without an attorney, there are often things they miss.
Think about it. It’s not just your attorney’s job to get you divorced, though, of course, that’s a big part of it. It’s your attorney’s job to do so much more than that. To make sure that you get what you should, that you’re set up for success in the future, that you (and your soon to be ex husband) know what to expect after the divorce decree is entered, and even to protect you against unexpected circumstances later on down the road. There’s a lot that goes into representing a client even in the simplest cases.
As attorneys, we’ve seen a lot of the worst case scenario type stuff. We always have to put the pieces back together, and that makes us pretty wary. We’re always nervous about agreements, and we read them carefully before letting our clients sign. We’re always looking for new provisions to add to protect our clients and make sure that they’re taken care of no matter what happens in the future. Even though we don’t have a crystal ball, we go to great lengths to think of everything—and since we’ve handled so many divorces over the course of our careers, we’re often able to think far enough ahead and protect our clients from some things that they might not have been able to foresee.
Doing it on your own, you don’t get the advantage of an entire law firm’s worth of attorneys, and you certainly don’t get to hear all about all the cases you’ve seen come in where another attorney messed up royally. Because of this, there are certain mistakes I see made in agreements that women draft without the help of an attorney.
That’s not to say that you can’t do it on your own, if that’s what you want. I definitely don’t mean to discourage you; there’s certainly a place for it, and cases where it’s not too difficult. Besides, chances are that you won’t run into any of the situations that we’ve seen come up in some of the worst case scenario type cases. After all, for every one that we see where an unforeseen disaster sprang up later, there’s ten or twenty or even fifty where things go off without a hitch at all. Do you want to chance it? You may be fine.
Still, I think the most important takeaway from this article is this: if you DO decide to negotiate your own separation agreement, good for you—but make sure that you do the research first, and know what you’re getting into. Today, we’re going to discuss 3 mistakes women make when they draft separation agreements.

1. They bargain over everything—without realizing that there are some things the law guarantees.

If you don’t know anything about the law, it’s absolutely possible that you could, without knowing, write an agreement for yourself that is WORSE than what your husband’s attorney would present you with.
The law is complicated, complex, and constantly changing. It’s also incredibly state specific. That makes it hard for people who don’t practice law every day to realize what’s worth fighting over or negotiating, and what just isn’t. They don’t know what a judge would award, and what’s not even remotely possible. I hate to see people who give up on things that a judge would never make them give up.
If you don’t know what your rights are, you’re just not ready to start negotiating. Plain and simple. Is it hard to figure out? Well, yes and no. It’s hard if you just start reading code sections or trying to figure out case law by reading a bunch of different Supreme Court decisions. That could be time consuming and difficult.
But that’s not the only way to learn about the law. For the past twenty five years, we’ve been teaching seminars on what Virginia women need to know about divorce. Each seminar is taught by one of our licensed and experienced Virginia attorneys, and you’ll have a chance to ask your questions to the attorney during the seminar. You can learn about your rights and what you’re entitled to receive, and that’ll go a long way towards helping you draft your own separation agreement.
Since it’s so easy to start to learn about the law in Virginia, why not attend one of our seminars? If you, like most women, have thousands or tens of thousands of dollars at stake, you’d be crazy not to!

2. They don’t include provisions for common problems that might arise later.

I touched on this a little at the beginning, but it’s so important. I know you’re not thinking of everything now, but you do have to do your best to draft a document that is as forward thinking as possible. Especially if you have kids together, you’re going to want to draft an agreement that grows with you—and keeps you out of court later on in the future.
Think about what’s likely to happen. If you have kids, they’ll grow. What’s appropriate for a breastfeeding baby is different from what’s appropriate for a school aged child or a teenager. The best agreement is one that expands and grows with the child—not one that only deals with the here and now and forces parents to go back to court to determine what type of custody and visitation arrangement is appropriate.
Likewise, there are other things that can change long term. What happens if one of you declares bankruptcy? What about jointly owned debts that the bankrupt spouse had agreed to take on? Creditors won’t just let you off the hook. Find out what you can do to protect yourself, no matter what happens.

3. They find a form—but then they don’t know how to get their uncontested divorce later.

There are really two parts to getting an uncontested, no fault divorce. There’s (1) the process of drafting an agreement, and (2) the process of filing for an uncontested, no fault divorce in your local circuit court. If all you focus on is getting the agreement drafted (or, vice versa, filing for divorce), you’re only half done.
Well begun is certainly half done, as Mary Poppins always said, but it’s not enough. Not if your main goal (like most women’s) is, ultimately, to get a divorce.
Remember that you’ll have to negotiate your agreement AND successfully petition your circuit court for divorce. Is it hard? Well, it all depends on the court you file in—but I’ve seen lots of pro se litigants (people who try to handle their divorces on their own) stumble when they got to the very end of the process.
Need a little help along the way, but don’t want to hire an attorney? You’re not alone.

You’re wise to be thinking outside the box, but make sure you have all the information you need before you rush headlong into a decision. Take time to do the research, ask the right questions, and make sure you’re taking all the steps necessary to protect yourself.
Don’t make these 3 mistakes women make drafting separation agreements.  You’re smarter than that.  Whether you do it on your own or hire an attorney to do it for you, make sure your agreement is very nearly perfect–before you sign.  There’s no turning back later!


For more information or to go ahead and schedule an appointment one on one with our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200. We can help you figure out your next steps, whether or not you decide to hire us to represent you in your upcoming divorce case.