If we don’t agree, can we still get a separation agreement?

Posted on Dec 5, 2022 by Katie Carter

Most people have a lot of questions about the divorce process – even if they understand the basics. After all, there’s a lot that is really fact specific, and it can be hard to apply a general principle to a specific situation. Even if you can sort of guess what the answer might be, you probably also want to make sure that what you’re thinking is actually accurate.

When it comes to divorce, there are essentially two ways to accomplish it: (1) you negotiate an agreement between the two of you that divides all your assets and liabilities, or (2) you go to court and let the judge do the dividing.

It’s generally cheaper, easier, and less stressful to resolve issues yourself, between the two of you. But CAN you? That’s a more difficult question.

If you and your husband can’t agree, there’s no other alternative than to go to court. But that doesn’t mean that every couple agrees on every point from the get-go – in fact, that’s unusual. But how do you know whether your disagreements are the kind that can be eventually resolved, or whether you’re going to have to resort to full blown litigation in order to achieve some resolution in your unique case?

Well, you don’t. And, more to the point, we often don’t.

Every couple is different, right? And so, too, is their level of reasonableness, and general willingness to compromise. A lot of times when we get a question like this, it’s at the very beginning of the case, and we’re not really all that sure about either party. We don’t have crystal balls, so our soothsaying abilities are not all that great. Divorce lawyers are – for better or for worse – generally pretty pragmatic people who live in a world where we rely on facts alone, and are loathe to make predictions or rely on conjecture.

It’s hard to tell, at the beginning of a case, whether the parties will settle. Well, whether they’ll settle is a little easier to determine – because most cases do, at some point, settle. It’s not that common that we take an entire case to trial. But the path we take leading up to the point where settlement is achieved can be winding, and it can involve more (or less) litigation. That’s the part that’s hard to predict.

Well, we definitely don’t agree today.

That’s pretty normal. It’s unusual for a couple to have a complete agreement before any negotiation takes place. There are usually some issues where the parties are not in agreement – child custody, visitation, and spousal support are some of the more difficult issues to resolve in many cases – and it can take some time to come to an accord.

That’s not unusual, and it doesn’t necessarily require any litigation. In many cases, where the client has retained us to negotiate a separation agreement, there is a fairly lengthy negotiation process. It can involve several different proposals, emails or letters back and forth, participating in structured mediation, or even judicial or 4 way settlement conferences. It doesn’t necessarily happen overnight. (Though, obviously, it can!)

A lot of times, one (or both!) parties have some pretty major misconceptions about divorce law and how it works in Virginia. Only today, a woman told me that she and her husband would like to get a separation agreement, but that he doesn’t agree that she should receive any portion of his 401(k). Well, if that’s all it is, it could be quite the quick case.

The law as it relates to retirement is pretty settled. You’ll receive 50% of the marital share of the retirement accounts (and vice versa). His ‘feeling’ that she shouldn’t receive a portion of it doesn’t amount to much, and, if he retains an attorney to represent him, the attorney will quickly tell him that its not worth fighting on that point.

Maybe he doesn’t get an attorney. That sometimes happens, too, though we’d generally prefer a husband (especially a difficult one) to be represented by counsel. Maybe he stays unreasonable. Then, there really won’t be much we can do, even in an area as well settled as retirement, other than litigate – but at least the result is clear.

In other areas, though, the law is less settled. If custody and visitation, or spousal support, are at issue, and the two of you aren’t able to negotiate a suitable outcome, you’ll have to litigate, and the outcome is uncertain. This is where real negotiation comes into play, because there’s a range of outcomes that might be suitable. What is ideal for you is going to depend a lot on how risk averse you are or are not, and how much money you have to spend to secure a particular outcome – but, in any case, a specific outcome isn’t guaranteed.

There are some cases where we can tell, from the get go, that it’s going to be wasted effort to start out negotiating. In some cases, it’s going to be better to be aggressive, especially if he’s dismissive of your desire to get divorced or used to being able to dominate or abuse you.

Ultimately, the best way to get as accurate an idea as possible about whether (or not) you can start out negotiating, or whether you should file for divorce first (and negotiate second), is going to be to meet one on one with an experienced Virginia family law attorney. Just because you file for divorce and, at least initially, pursue a contested divorce doesn’t mean that your case will stay in the courts, or that you’re doomed to see it through to a nasty, messy trial. Not at all, in fact.

In some cases – especially cases where he’s abusive or narcissistic – it can be helpful to file first. To show him you’re serious, and to demonstrate to him that you’re willing to stand up for yourself, it can be necessary to take decisive action. If he’s being manipulative, suggesting that he’s willing to compromise but ultimately just spinning wheels, it’s better to file, because then you’ll have the force of the court behind you, and you can keep things moving.

There’s no ‘one size fits all’, which I imagine that you know (or at least suspect). There’s no two marriages, or two husbands, or two wives, who are exactly the same. The issues presented have nuance and context in each case that are difficult for an outsider to understand, and certainly don’t create the same set of consequences.

If you’re worried, well, you’re not alone. I’ve tried to help give you some benchmarks here so that you won’t lie awake at night, worrying, but there’s also no substitute for talking to someone one on one about your specific case. You could also request a free copy of our divorce book, or register to attend our monthly divorce seminar – but, really, talking to someone face to face is probably going to make you feel the most comfortable and confident in the outcome.

It’s smart to consider all the options, and to have a grasp on the entirety of the divorce process. It’s also wise to get advice from someone experienced, and to share the specific concerns that you have. If, for example, your concern is mostly related to budget (i.e., “I don’t know how much this is going to cost.”) that’s going to be something you should share with your attorney from the get-go.

The more transparent you are, and the more information you share about what’s brought you to this point, the better advice we can give about where you are and how you should move forward. For more information, or to schedule an appointment with one of our licensed and experienced women only divorce and custody lawyers, give our office a call at 757-425-5200.