He Drafted a Separation Agreement. Now What?

Posted on Nov 16, 2016 by Katie Carter

These days, it is probably safe to say that most people get divorced with a separation agreement. And that’s a good thing! That means that (though it may not have been the easiest thing in the world to do) they aren’t wasting time and money fighting over things in court.
When you negotiate a separation agreement, you have the most possible control over your assets and how they’ll be divided. Of course, that doesn’t mean you’ll get everything, and it also doesn’t mean that you’ll feel every single minute that you have that much control. But, when you consider the alternative, a separation agreement makes you pretty powerful.
But, if your husband has taken the first stab at your agreement, you probably don’t feel all that powerful. Taking a look at the first draft of the document he (and possibly his attorney) has created feels overwhelming. It feels like you’re being cheated and taken advantage of—or, at least, it seems like that’s his goal. It makes you feel suspicious and distrustful. It’s an uncomfortable feeling, and it’s hard not to react viscerally.
It would be weird if you didn’t react strongly. But, truth be told, whether you really feel all that lucky or not at the moment (and, chances are, you probably don’t), you’re pretty lucky to find yourself in this position.
Yes, okay, so he wrote the first draft. And, yes, so it’s probably pretty strongly in his favor. It probably says you’ll waive spousal support and a couple other pretty critical things that you’d never willingly waive. It probably makes your skin crawl.
The good news, though, is that he is of a mind to negotiate. He’s not filing for divorce and planning this knock down, drag out fight. The way a separation agreement works is through negotiation. He wouldn’t put his best offer out there first, because then he’d have no wiggle room if you counter offered. It’s pretty standard practice that the first draft an attorney prepares on their client’s behalf is pretty much their best case scenario.
You don’t have to accept it. In fact, you probably shouldn’t accept it! Consider it a starting point, and an insight into his mind, and move on. Separation agreements are achieved through negotiation. If he has sent you a copy of a first draft, there has been no negotiation. Yet.
But all that’s about to change, and you don’t have to go at it alone if you don’t want to. Lots of people hire attorneys or mediators to help them finalize their separation agreements. And, if he’s talked to a divorce lawyer, you’ll probably want to at least talk to one, too.

If your husband has presented you with a separation agreement, don’t freak out! Here’s what to do.

1. Do not sign it.

You really won’t be able to un sign it later. Not because you didn’t read it, or misunderstood it, or thought it meant something else. Not because he lied to you or he said it was temporary or because you thought you could modify it later.
Once signed, an agreement really can’t be un signed. You should take this very seriously, and don’t just sign to get him off your back. You could really regret it later.
Remember: this is a negotiation. If you just sign it, you haven’t negotiated anything. Slow your roll, sister.

2. Have it reviewed.

The problem with working with someone who isn’t a licensed Virginia divorce attorney is that they don’t necessarily know the law. They can’t advise you about what a good agreement would look like for you, what the judge might award, or what you should do.
They also can’t predict the future. Okay, so, I’ll admit it: neither can we. But, we can come a whole lot closer than people who aren’t familiar with the nuance of separation agreement cases.
Part of what we do isn’t just drafting agreements, it’s defending them later on. When people come into our office with bad agreements, sometimes we have to take them to court to argue over what a particular provision means, or whether something was intended to be included. And what if property is discovered AFTER the divorce (whether it was intentionally hidden by one spouse or not)? What happens then?
What happens in bankruptcy, or other unusual situation? Our agreements are designed, in as many ways as possible, to deal with whatever might possibly come up. Can you say the same about an agreement drafted by a mediator, JAG attorney, or pro se litigant (a person representing himself)?
You don’t have to hire an attorney if you don’t want to. Attorneys will meet with you, without you paying a retainer fee, at their hourly rate if you just want documents reviewed or some advice about whether a proposed agreement is a good one for you.
Yeah, okay, so it’ll cost you a few bucks—but what’s $285 (the going rate for a consultation in our office) compared to losing (or gaining) tens of thousands worth of dollars in assets that will be divided in your divorce?
In a lot of cases, you don’t know what you don’t know—and you certainly aren’t expected to. But you should be asking the questions and getting the answers you need now.

3. Make a counter offer.

You’re in just as strong of a bargaining position as him. Once you’ve talked to a Virginia Beach divorce lawyer, it’s time to start thinking about making a counter offer.
What’s missing from your agreement? What do you need to see to feel comfortable signing? Ask for what you want. After all, he did—and if you don’t ask, you definitely don’t get.

4. Remember: you’re only limited by your own creativity.

Separation agreements give you a lot of freedom to do what you want with your marital assets. If you’re a round peg, we’re not going to force you into a square hole.
A separation agreement doesn’t have to look a specific way. Feel free to be creative and come up with a solution that accomplishes your goals.
Not sure what to do? Again, talk to a divorce lawyer—we can help you come up with a unique solution to whatever problem you’re having.
I know that it’s difficult to receive a first draft of a separation agreement, but that doesn’t mean that you’re stuck taking his first offer. Quite the opposite, in fact! Take your time, and make sure to get it right. Ask questions. Get the answers you need. Feel comfortable making a counter offer.
You’re in a good place, and it’s a good thing your husband is focused on reaching an agreement, rather than the alternative. For more information, or to schedule an appointment with one of our licensed and experienced Virginia Beach divorce lawyers, give our office a call at (757) 425-5200.