Can I overturn a bad signed separation agreement in Virginia?

Posted on Dec 22, 2021 by Katie Carter


Everyone wants to save money in their divorce. Everyone wants it over with quickly. Everyone is worried. Everyone needs to feel some finality. Everyone has specific hot-button issues that they feel need to be resolved for them to feel at peace.

The fact is, most people share a lot of the same concerns. In addition to being very concerned about the cost, a lot of people just don’t really feel like they have the bandwidth – at the exact moment that their marriage is crumbling – to devote a lot of careful attention to how everything should be divided. It’s a really difficult point in time at a really overwhelming intersection of different parts of a life, and it can be hard to think critically, to stay calm, and to prioritize.

The problem is, though, that, when it comes to separation agreements, you really only get one bite at the apple. So, if he presents you with a separation agreement, telling you that if you just sign he’ll take care of the rest, it can seem pretty tempting – especially if he does something that looks good on paper, like giving you the custodial arrangement you’re after.

Everyone handles stress differently. One way is no more valid than any other way, but some ways do come with specific inherent risks, especially when it comes to negotiating and signing legal documents.

In general, it’s a really bad idea to sign a separation agreement without having it reviewed by an attorney.

There are a lot of things that you might not realize, without having spent a lot of time working in divorce law, that could trip you up later. I don’t mean that as a dig. It’s actually pretty complicated! And while attorneys generally try to spell things out as clearly and concisely as possible (because we do not like the idea of there being a problem with an agreement we drafted later on down the line), we’re mostly writing to speak to the court, and not so much to speak to the non-attorney person who might be reading (or trying to abide by) the document later.

I know – it costs money to talk to an attorney. And the agreement looks pretty okay. Legal-y, but that’s what you expect, right?

I know it costs money to talk to an attorney. But there’s definitely different degrees of cost. There’s a difference between hiring an attorney to review and negotiate a separation agreement and hiring an attorney to litigate your case in court. A really BIG difference, in most cases.

Its often hard to give a ‘ballpark’ estimate for how much a case will cost because there are so many different variables that can be involved, but it’s pretty easy to say that there can be tremendous differences between retainers for these two types of cases.

Not only that, but you don’t have to HIRE an attorney at all. In a lot of cases, you can just meet with the attorney, like a regular consultation, to have your document reviewed. You could meet with the attorney to get some feedback, and then take that feedback and negotiate yourself. Repeat as needed, as different revisions come up.

But what if I’ve already signed. Can I get the agreement overturned?

I hate these cases. These are among the worst conversations I ever have to have with women about their divorce cases.

In general, it is almost impossible to overturn an agreement after its already signed. There are certain situations where an addendum can be drafted that modifies the original agreement, and those can completely take the place of the first agreement.

But there’s a catch – the opposing party will have to agree to sign. And why would he, when he already got everything anyway? That’s a pretty major snag, and one we run into in most of these cases. At some point, you don’t want to spin your wheels – having an attorney draft documents and send letters – when he’s not at all inclined to do anything different.

Agreements can be overturned if they’re unconscionable – meaning, (1) so bad that no reasonable person would have signed it, and (2) that they were signed under duress (so, like, he had a gun to your head and you thought he’d kill you). Both of those things have to exist in order for an agreement to be overturned, and that’s HARD TO DO. The problem is that if you receive any benefit at all, like even a tiny benefit, it could be perceived as a bargained-for benefit. Like, something may be small, but who’s to say what’s important to someone? It’s conceivable that even a small thing would be so important to someone that they’d give up everything else.

A great example of this is custody, like I mentioned earlier. The trouble with giving everything up for custody – one of those things I mentioned that you might not know if you don’t have a career in divorce law – is that custody and visitation are always modifiable based on a material change in circumstances. Having given up all of the assets in equitable distribution is NOT modifiable! So, you could waive your right to spousal support, waive your right to the retirement, waive your right to equity in the home, and that’s waived forever. But custody is going to be modifiable!

Lots of moms are willing to give up everything for custody, but without realizing that custody isn’t fixed. It’s always going to be changeable because what’s in the child’s best interests isn’t fixed; it’s constantly evolving.

I think you’ll find that it’s not easy to overturn an agreement; it’s virtually impossible. That’s why it’s really important to do your due diligence up front, and not sign agreements without having them reviewed. Maybe you decide to sign a bad agreement anyway; that’s certainly your right. But you shouldn’t do it because you don’t know any better. If you sign a bad agreement, you should do it in full knowledge of what you’re doing, and understanding the implications of your decision.

For more information, or to schedule a consultation with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200. Yes, we can just review a draft agreement, too, with no retainer required.