Drafting a Separation Agreement

Posted on Aug 17, 2016 by Katie Carter

One of the main principles when it comes to drafting a separation agreement is that its legal if you and your husband have signed it. It doesn’t have to look a certain way or include specific words; it can be legal even if it was written on a beverage napkin or an old receipt.
Of course, you should also know that, once it’s signed, it’ll be virtually impossible to un-sign it later. That’s the main reason why attorneys always tell clients and prospective clients that they should be careful when they’re trying to negotiate and draft separation agreements themselves. Over the years, most family law attorneys have seen dozens of women who come in with awful agreements—and then we have to tell them that it’s unlikely that their agreement would ever be overturned in the courts, and also that they’re pretty much stuck with the agreement they’ve got.

When can an agreement be overturned?

I know this isn’t your question—you want to know, basically, whether you can negotiate and sign your own agreement without talking to an attorney—but I think it’s important to start here. You should know how agreements can (or, really, if I’m being honest, can’t) be overturned if you decide you aren’t happy later.
Most people these days get divorced using a separation agreement. It’s the cheapest, easiest, most time consuming way to get your divorce resolved. Besides that, it ensures that you have as much say over how things will be divided as possible. (When you go to court, the judge decides. For most people, that’s not ideal.) Separation agreements are great. I draft them all the time. I think you’re absolutely right to be thinking along these lines. But you should think it all the way through.
Judges don’t like to overturn agreements. Judges want to do everything they can to encourage people to negotiate their disputes on their own. Why? Because people who have settled their issues don’t wind up in the courtrooms. In our area, the court’s docket is super backed up already. If I want to file a divorce trial, chances are pretty good that I won’t be able to get a date for the next 7-8 months. It’s pretty tricky getting scheduled so, from the judge’s perspective, the more cases can be kept out of the court system, the better.
So, to encourage settlement, judges can’t overturn agreements. Let’s use an example to illustrate the judge’s perspective.
John and Vivian are getting divorced. They negotiate a separation agreement, where John gets to keep the house (though Vivian gets her share of the equity), and Vivian agrees to sign any paperwork necessary to allow John to refinance the home into his sole name, removing hers entirely. After the agreement is signed, Vivian signs the necessary paperwork (because John won’t be able to pay her share of the equity until the refinance goes through)—but then John doesn’t pay.
If John petitioned the court to overturn the agreement and the judge sided with him, Vivian would never see her share of the equity in the home.
If courts behaved like that, overturning agreements right and left, why would anyone sign them? No one would want to wind up in a situation like Vivian. There would be no reason to negotiate agreements if you felt like you couldn’t rely on the agreement—and, if necessary, have it enforced in court later. No one would want to perform their obligation under the agreement if the other party could trick them later on down the road.
Besides that, of course, like we already said—most judges WANT people to negotiate agreements on their own and settle their disputes without judicial intervention. People who negotiate agreements are happier with the overall outcomes, too, so it’s really a matter of public policy that agreements are supported on a judicial level.

What are the risks if I try to negotiate my own separation agreement?

Part of the problem isn’t just the agreement—it’s the fact that people who aren’t attorneys (no offense) just don’t know what the law allows them to receive. So an agreement that, on its face, seems like a pretty good idea might not be. I see women all the time who give away things that the law would almost certainly award to them, just because they don’t know what the law says or what a judge might do.
What if you negotiate on something that the judge would automatically award you? Then, you’ve given up your right for something that would have been at least half yours anyway to get something that the judge would have given you without negotiation.
Not only that, but people who aren’t attorneys aren’t used to the process of defending bad agreements later. When non-attorneys draft agreements, they aren’t thinking about how to draft it to avoid problems later on. Even if they were thinking about how to avoid problems, they wouldn’t know how to effectively draft their agreements so that they could avoid common pitfalls.
A lot of the problems we see come from provisions that were drafted in ambiguous language. If provisions aren’t drafted specifically enough, you can have trouble later on down the road. Say, for example, that you think a certain provision says one thing—and your ex husband thinks something different. Who is right? If you can’t agree, you may have to go back to court to let the judge decide which is exactly the situation you were trying to avoid by negotiating an agreement to begin with. Right? Besides that, it can also be expensive and time consuming. Why draft an agreement that doesn’t take care of these types of situations? After all, isn’t that the point?
You really won’t be able to overturn a bad agreement, either. That’s definitely something you should consider. With the exception of anything relating to the kids, like custody, child support, and visitation, you won’t be able to revisit issues later on if you find you made a mistake.

But CAN I negotiate and sign my own separation agreement?

To make a long story short, yes, you can. In Virginia, you’re free to represent yourself without an attorney in a divorce (or a custody) case. So, you don’t have to hire an attorney if you don’t want one. Though some courts may be more or less cooperative when it comes to helping pro se litigants (that’s what we call people who go at it in court without hiring an attorney), you are certainly allowed to do so.
Lots of people negotiate their own agreements every single day. It’s actually a pretty easy thing to do. Of course, that’s not to say that all people who do it actually do a good job of it—in fact, quite the contrary.
If you’re planning on negotiating your own separation agreement, I won’t dissuade you. I will, however, give you a couple of tips that will help you.

1. At least talk to an attorney before you sign.

Did you know that you don’t have to HIRE an attorney just to talk to one? A lot of the time, we talk to people before they negotiate an agreement or go to mediation just to help give them an idea of what they might reasonably expect to receive. We can give them a range of acceptable options, and talk to them about what their rights are (that is, what they would automatically receive), where to negotiate, and what a judge might do if the same issue came up in his courtroom.
We often review agreements after they’re drafted (but before they are signed), too, just to make sure that the agreement says that the woman thinks it says and that she understands all the provisions in it. Once you sign, there’s no going back—so it’s great to get that feedback ahead of time. Make sure you’ve got all the provisions in there that will cover your butt later. And, after all, why not? You don’t have to hire us for us to do that; we’ll just meet with you for the consult fee first (in our office, it’s $285), and then at our hourly rate after our first meeting (the hourly rate ranges from $285-400 an hour).
Sure, it costs a couple hundred dollars, but when you consider that you’ve got thousands at stake—it’s well worth the investment up front to make sure that you’re getting what you deserve.

2. Don’t use online forms unless you know where they came from (and who created them).

Make sure that anything you find online is up to date, Virginia specific, and drafted by a Virginia-based family law attorney. Anything else is just too risky.
Divorce and custody law are incredibly state specific, so something from another state may or may not be appropriate to apply in your situation. Besides that, the law is constantly updated, so even something from last year may not be the most up to date law. Be careful—you should always know (and understand) what you’re putting in your agreement, and blindly applying a form agreement regardless of what applies in your particular state can be a road to trouble.

You’re in the right place, and you’re asking the right questions, and that’s half the battle. We’re here to help, though, if you need more information or want to talk to one of our attorneys about your case. Feel free to give our office a call at (757) 425-5200.