“Fake” Separation Agreements

Posted on Dec 20, 2017 by Katie Carter

I had a consult the other day where  a woman walked in with a signed document with a header that said “Separation Agreement” and she asked me, “Is there any chance this is fake?”

Did I sign a fake separation agreement?

I had to do a double take.  What do you mean, fake?  I asked her a couple questions, but mostly I was totally confused.  Where would a document indicate that it would be fake?  After all, a separation agreement isn’t some fancy hocus pocus that only lawyers can put on a page.

A separation agreement can vary in levels of formality, but mostly a judge will look at whether the intention was for this to be a contract that dissolves the marriage, separating the assets and liabilities between the parties.  If it looks as though it is, even if the document itself isn’t perfect (and, for people who’ve chosen to DIY their divorces, they often are pretty darn far from perfect), it’s a legitimate contract. Fake?  I don’t see how it could be fake.  I’m not even sure what that means!  Even if he wrote it himself.  Even if he downloaded it off the internet.  Even if he wrote it entirely in his favor.

It’s a contract.  Private people can draw up their own contracts, and there’s nothing fake about it. Fake news has been a running joke lately, and you see references to it everywhere.  News can be fake if it comes from a disreputable (or satirical) source.  Separation agreements – in fact, any contract – aren’t that way.  There’s no random words he can sprinkle in, or no way the words align, that would indicate to anyone that a signed agreement is fake.

This one, to be fair, was executed pretty poorly.  I advised this particular woman to negotiate an addendum to clear up some of the inconsistencies and ambiguities in the document that, although probably not a barrier to him getting the final divorce entered, would make following the agreement difficult later on down the line.  Clearing up some of the issues with the agreement would, eventually, make their job easier (and less expensive) when it came time to finalize the divorce.

That’s not to say, though, that the document itself is fake.  It isn’t.  It’s legit.  It’s crappy.  It was executed with a total lack of sophistication.  It looks like a document he pulled off the internet and very sloppily put together.  But it isn’t fake. He told me my separation agreement was only temporary. A separation agreement probably can’t be fake.

Maybe if the heading said “FAKE SEPARATION AGREEMENT” or there was language inside that this separation agreement was drafted as a joke and not intended to be used to dissolve the marriage…  But, then again, why would that be?  To normal, happily married people, a separation agreement and a divorce are really not funny jokes.  I’ve never seen a document that said “FAKE SEPARATION AGREEMENT” at the top.  And I don’t know why that would ever even happen.  I’m basically just spinning my wheels here.

Temporary separation agreements

Separation agreements can, though, be temporary, or partial.  Many people enter into agreements to help them navigate the short term while they work on an arrangement that will really work for them in the long term. When I’ve drafted a temporary separation agreement, I make it clear.  I call it a “temporary separation agreement”, not a “separation agreement.”

If it’s only good for a specific term, I define that term.  If we’re working towards a full and complete separation agreement, I say that, too.  In short, I always define my intention, and point towards pieces of the agreement that support that intention. People often negotiate temporary separation agreements to handle short term issues like how the mortgage will be paid, who will stay in the home, and how the children will be supported.  If we’re working on a longer, more complete agreement, I just indicate that in the agreement.

Partial separation agreements

A separation agreement can also be partial.  Just because you have an agreement on some things doesn’t necessarily mean that you have an agreement on everything. Spousal support and child custody and visitation are often major sticking points.  Just because people can agree on, for example, how to divide the retirement and the marital residence (because those things are more or less certain, and not often worth the money to litigate in court) doesn’t mean they can reach an agreement on every point. Sometimes, we agree in stages.  We’ll agree to the parts that we can agree to, and we’ll save the others to agree on later, or to go to court on, if necessary.

A partial separation agreement will say it’s partial.  It’ll say that other issues are reserved, either for future agreement of the parties, or for determination by a judge.   It’s clear, and the intention is obvious.  All throughout the agreement, these sentiments are continually repeated.

What if he presents me with a separation agreement?

A separation agreement is a very serious thing and, once signed, it’s very difficult to un-sign.  Really, the best way to modify a signed separation agreement is with an addendum – another, subsequent agreement that modifies the terms of the original.  Of course, if what you’ve signed is bad for you but good for him, getting him to agree to negotiate an addendum is probably unlikely, to say the very least.  What incentive could he have to negotiate away something that was already beneficial to him?

Negotiating an addendum to a separation agreement is tricky!

Addendums are difficult.  Often, they’re more difficult than the original agreement, because, once a first agreement is signed (especially if it’s a bad one), people are a little more leery of signing.  They don’t want to give away the advantages to them, either.  It can often be time consuming and expensive. Your best bet is always to try to get it right on the first go, if at all possible.  It’s not always possible, of course, and sometimes things happen.

Even agreements that I’ve participated in drafting have sometimes needed addendums to either clarify a point that has proved more troublesome than any of us could have anticipated (I’m thinking of a particular case right now!), or to take into account a change that no one knew would take place.   You should approach a separation agreement with caution.

It should go without saying, but you should definitely read it.  Ask questions if you don’t understand.  In general, a best practice would be to consult with an attorney before you sign anything.  Whether you hire an attorney to represent you or not, you can at least get advice, ask questions, and make sure you’re as well protected as possible.   Remember, too, that a separation agreement is often the result of an extensive negotiation.  We often don’t sign our first draft.  It’s a longer, more elaborate process than that.  So if you’re shocked by his first draft, don’t be – negotiate.

Hire an attorney to do it for you if you’re afraid you can’t do it yourself.  But take it for face value, and fight back.  Diplomatically, of course – because you catch more flies with honey than vinegar, as my mom always said.  But you don’t have to take the first offer (in fact, I’d discourage it, unless he’s insanely generous, which, frankly, I doubt).   Don’t sign without being sure of what your agreement says, what Virginia law entitles you to, and what a judge might do.  Ask questions.  Get information.  Negotiate.

Talk to a Virginia attorney. A separation agreement probably isn’t “fake”, and, if it’s temporary or partial, you’ll want to be extra careful, too.  Get the information you need BEFORE you sign – because, afterwards, there may be very little we can do for you if you’ve sold yourself too short. For more information, call us at 757 425-5200.