Divorce can take several different shapes, although the end result is fairly simple: either you get divorced with a separation agreement, or you litigate your divorce in court and the judge decides.
A separation agreement is a legal contract that divides all the assets and responsibilities from the marriage between the parties. Most people ultimately negotiate a separation agreement (though that’s not to suggest that it’s easy, or comes together automatically!) for a lot of reasons, which we’ll discuss in more detail in a bit.
Separation agreements are reached in different types of cases, too. Whether you go to mediation, hire a collaboratively trained attorney, negotiate with an attorney, or even file for divorce with the court and ultimately settle before trial, you’ll sign a separation agreement.
But WHY sign a separation agreement?
There are a lot of reasons to sign a separation agreement! Let’s discuss.
1. A separation agreement is a legal contract between a husband and wife that gives you the most control over the outcome.
This one is probably the biggest advantage of a separation agreement. A separation agreement gives you control over the outcome. You’re not at the mercy of a judge – the person in the courtroom who knows the least about any given case – and the only real limitation on what you and your husband can agree to is your own imaginations.
Reaching your own agreement allows you to customize the provisions to your liking, maximize the value of the assets that you’ve spent years accumulating, come up with creative solutions that the law might not allow, and even divide your assets so that you receive the benefit of the 50% (more or less) that actually means the most to you.
Maintaining control, where assets worth thousands or tens of thousands or hundreds of thousands of dollars are concerned, is important. Though it’s difficult to reach an agreement in many, many cases, it’s also worth the effort.
When a judge makes a decision, he does so carefully – but that doesn’t mean that he’ll be creative or construct something unique to your own situation. For one thing, there’s not really time to do so, but also there’s the fact that doing so could result in a judge being overturned on appeal. The more customized a ruling, the more likely an argument could be made that suggests that a judge behaved prejudicially, or out of a desire to punish one party or the other.
Where your children are concerned especially, you’d probably like the ability to maintain as much control over your parenting time as possible, without feeling limited by the framework that a judge typically operates in.
In cases where agreements are negotiated, parties are – generally speaking – happier with the outcomes. Feeling happy (ish) instead of defeated or discouraged or disillusioned will also help you move forward more confidently into the future.
2. A separation agreement will keep you out of court.
Court is no fun. It’s stressful. And it means that a lot of the elements of your divorce are outside of your control.
Court has its place, of course. There are a lot of reasons you might choose to go to court – especially if your husband is unreasonable, and you would be unable to reach an agreement otherwise. Several issues, like child custody and spousal support, can be more difficult than others to reach an agreement on and, if you just can’t get there, well, court may be for you.
For most other people, though, agreement is possible. And preferable.
In court, there are winners and losers. There are a lot of moving pieces. And anxiety. And stress, both for you and your children. And I think the question is always whether you’ll get a better result. Wouldn’t you agree?
In divorce, if it doesn’t yield better results, then why bother? It’s always worth having a full and frank discussion with your attorney before making any big decisions, and working backward to decide strategies after you’ve determined your specific goals.
Going to court can be a part of a solid divorce strategy, but it should be just that: part of your strategy, not the result of impulsive decisions made at the beginning without a clear idea of how you plan to move your case forward.
3. A separation agreement will help you keep costs lower.
That’s the other thing about going to court: it’s insanely expensive! Dollar for dollar, an attorney’s time generally costs the same, in or out of court. But separation agreements are typically achieved more quickly, and involve fewer moving pieces – experts, witnesses, evidence, etc.
The cost comparison between contested and uncontested divorces is pretty shocking.
If you’ve got bottomless pockets, why not litigate? But who really has bottomless pockets? (And, even so, there’s the question of whether you’ll actually get the results you’re seeking, which I can’t answer in an article without a one-on-one consultation about your specific concerns.)
What issues are decided in a separation agreement?
In most cases, if you’re able to reach an agreement, a separation agreement is better. Though, of course, determining what course of action is best for YOU, in your unique circumstances, is best discussed one on one in a consultation with an experienced divorce attorney. It may be that litigation is necessary, but, either way, you should be acting carefully, consciously, in full awareness of the impact of your choices on yourself and your future.
There’s really no underestimating the importance of the choices you’re making. A divorce divides the assets that you’ve spent your entire marriage accumulating, and, in many cases, they’re significant.
A separation agreement divides everything – personal property, real estate, investments and retirement accounts, pets, bank accounts, cars, etc – literally all the things that make up your life. If it was earned, purchased, or acquired during the marriage, regardless of title, it’s marital property, and is subject to division in your divorce.
It also divides the kids! Custody and visitation are included in a separation agreement as well, so you’ll want to be sure that you give it a lot of thought, and take it seriously. Don’t sign an agreement prepared for you by your husband’s attorney without having an attorney review it on your behalf. Remember, his attorney doesn’t represent you, and can’t answer your questions! You can’t un-sign an agreement later, either, so you’ll want to be sure you’ve read, understand, and agree with it before you sign!
For more information, or to schedule a consultation, give our office a call at 757-425-5200.