Reason number 2390123 I am more than a little terrified of random form documents that people find on the internet… Okay, well, honestly, in this case, two reasons: (1) people put in things that are in the form agreement “because it was on the form and just thought it needed to be in there” and (2) they put in provisions that aren’t enforceable or don’t make sense and then end up disappointed or annoyed and also in a position where they have to spend a lot of money to fix it.
I get it. Attorneys are expensive. You think you can resolve your issues. It actually makes sense to try, anyway. In this case, I think one of the most frustrating things is that she actually did the right thing before she signed the agreement – she came in to ask for advice. But then, she disregarded it, and signed the agreement anyway. And, lo and behold, just a few months later, she’s running into the problems we told her she’d run into.
I really do understand. There’s definitely some expense involved when it comes to hiring an attorney. But, when you think about it, and, especially when you compare costs of a bungled case versus a case where we can help you from beginning to end, there’s often no comparison. After all, we’re dividing a lot of super valuable assets, often worth hundreds of thousands of dollars, even in modest cases.
I say it all the time. Buying a house is a big deal. Buying a car is a big deal. But dividing a house, two cars, a couple retirement accounts, determining spousal support, and establishing custody and visitation? Now, THAT’s huge. Does it cost a couple thousand dollars to get an agreement in place effectively dividing all those things? Probably, yes. But is it worth it, when we’re talking about protecting your right to receive all the things that you accumulated throughout the marriage? Personally, I’d argue yes, especially if you don’t have a law degree yourself and aren’t 100% sure what you’re entitled to receive.
I’ll go into some detail; it’s actually interesting.
What problems did we find in the form separation agreement this woman found online?
The first big problem is that she just left language in that she found in the form agreement because she didn’t understand it and just thought it had to be in there. The specific language I’m referencing said that the agreement wouldn’t be incorporated into a final decree of divorce.
That’s weird, because, in all our agreements, we specifically say that the agreement will be incorporated into a final decree of divorce. Why? Well, one, so you can use it as an actual separation agreement for the purpose of getting divorced. (Kind of an important reason, right?) But, two, so it’s enforceable by the court – meaning that, if one of you doesn’t hold up his or her end of the bargain, you can put the matter in front of the judge and he has the authority to do something about it.
There’s a third issue, too, in that this provision is contradictory to the rest of the agreement this woman signed. There are other provisions that say that it’s intended to be a binding and final agreement (how can that be, if it’s not incorporated into the final decree of divorce?) and also that the parties will draft another agreement and sign it. So, what is it? Is it final, or is it temporary? It’s hard to tell, and the agreement doesn’t say exactly.
How can I fix my separation agreement if I’ve negotiated a bad one?
So, what are her options? Well, she can litigate and let the judge decide whether or not the agreement is a valid, enforceable one. That would be both time consuming and expensive, especially for someone who is already so concerned about costs that she would try to draft her own agreement.
She can also negotiate a new agreement, which is what, in this case, her husband’s current attorney is trying to do. But she’s furious, because she says the new agreement is nothing like the old, and she wants the old agreement. We haven’t seen this mysterious new agreement yet, but she’s furious that there has been an attempt to change at least some of the terms contained therein. But that leads me to the second big problem…
The agreement the parties drafted themselves includes provisions that aren’t enforceable. Specifically, it says that the wife will be able to continue to work in her husband’s business, receiving a certain salary each year, until she quits. If he fires her or stops paying her, the issue of spousal support is reserved.
Ugh, what a mess! Now, I’m not an employment law expert – but I do know that Virginia is an at will state, which means that you can be very easily hired or fired. I’m much mistaken if this agreement changes any of the actual laws related to employment in the Commonwealth, and, in this case, I’d advise the woman to talk to an employment law attorney about how a contract like this one would be viewed. My gut feeling? It’s not at all enforceable.
And, besides that, when it falls apart (as it almost inevitably will), that calls the issue of spousal support into question. Next to custody and visitation, spousal support is probably one of the most hotly contested issues in divorce and custody cases. So it’s being suddenly undetermined is a pretty big issue, and it really undermines the integrity of the agreement.
It’s also frustrating for this client in particular who, for whatever reason, though that the issue was resolved already in the sense that she could keep her job working for her former husband’s company. But, if that’s not the case, and then we have to negotiate and/or litigate spousal support, well, it really undermines the agreement.
Not only that, but she was talking about arrearages under the agreement! She says he hasn’t been paying her for her work with the company pursuant to this agreement, and had a pretty drawn out calculation about how much he still owed her. Never mind that the agreement said he’d pay her 35000 (not sure 35000 what – dollars? Quarters? Pennies? Euros? Pieces of pocket lint?), but I already don’t think this agreement is in any way enforceable. So this money that she has been relying on receiving (35000 rupees?) isn’t really a thing. I’d be really surprised if she was able to get it – or any portion of it, for that matter — if the case went to court.
It’s dangerous, frustrating, and expensive to rely on an agreement with as many problems as this one has.
What can this lady do to fix this form internet separation agreement?
Best case scenario? The parties will need to re-negotiate. That won’t really cost much more money than the case would’ve cost from the beginning, had the woman come to us in the first place. Then, it’s really all a question of how quickly we can come to an agreement.
If we can’t reach an agreement, though, the case will have to be litigated – which could cost a lot! Especially if part of the case is litigating over whether the parts of the agreement that are enforceable will be upheld by the judge. If so, we still have to litigate over spousal support, which is already one of the more difficult and expensive issues in family law cases. If not, we’ve litigated the validity of the agreement, and then we have to start from scratch and litigate the rest of the case. This, I’m afraid, could cost way more than if she and her husband had retained attorneys to negotiate from the start.
In the best case, she definitely hasn’t saved herself any money. She certainly hasn’t minimized the cost to herself, in terms of frustration and blood pressure points. She may really find herself feeling victimized and wrong footed, just because they chose to (ill advisedly, I must say) enter into an agreement including contradictory and unenforceable provisions.
In the worst case, she’ll spend a considerable sum correcting these mistakes.
It’s important to consult with an attorney before you sign an agreement, but that’s especially true if the agreement that you’ve drafted is a form document you’ve found on the internet. You can’t just include things when you don’t know what they say just because you assume they have to be in the agreement. And you’re not unlimited in terms of the things you can ask for in a separation agreement, either! You can easily bump up against the limits of the law, which can leave you frustrated and feeling like you’re accepting far less than you thought you were getting.
At least consult with an attorney. It’s far too important not to! For more information or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.