There’s more than one way to skin a cat, or so the saying goes. I’d never skin a cat. I love cats. It’s just an expression. Don’t be weird about it.
But if you have an objective in mind – basically, getting an agreement for divorce – there’s more than one way to do it. Depending on your soon-to-be ex-husband, though, there may be a preferred method for achieving it.
What is a separation agreement?
A separation agreement is a legal contract that divides all the assets, liabilities, and responsibilities from your marriage before you get an uncontested divorce. In order to get a divorce in Virginia, either you and your soon-to-be ex must do this together or you have to go to court to let the judge decide how everything will be divided. You negotiate a signed separation agreement and then you can move forward with an uncontested divorce.
It’s probably the easiest, quickest, least time consuming, and most effective (in terms of the results) way to get a divorce in Virginia. In most cases, at least.
What is a postnuptial agreement?
A postnuptial agreement is like a prenuptial agreement – it sets out terms and expectations for divorce, much like a separation agreement. But a separation agreement is usually entered into after the parties have decided to separate, and a prenuptial agreement is entered into before the parties marry.
In a postnuptial agreement, the parties usually agree that they’re trying to save their marriage. Whether the issue is drug or alcohol abuse, an affair, or general disconnectedness, in most cases the postnup is viewed as a last ditch attempt to save the marriage – usually proposed by the more penitent party.
A common scenario? Happy to share one. Say one spouse cheats. The other party was considering divorce but knows that, if she sleeps with him again, she’s legally forgiven the adultery and can’t use it as her grounds for divorce. She also wants to save the marriage, because she loves him. She bore his children. They’ve built a life together. She’s heartbroken, but its never that simple to just end a marriage.
To attempt to repair things, husband and wife agree to some terms. It doesn’t matter what the terms are. But they agree to them, and they specifically include the fact that – and this is inherent to all postnuptial agreements – the agreement will become their separation agreement if they decide to separate and eventually divorce.
Though I am not a fan of prenuptial agreements, I quite like the idea of postnuptial agreements. Admittedly, both are rare – at least in our practice. The major difference is that, in a prenuptial agreement situation, the marriage is held over your head, especially if you’re the lesser earning partner. You’re also expected to have a bit of a crystal ball that will allow you to predict where life will take you. Many people know little about divorce law but that doesn’t stop them from negotiating their prenuptial agreements like they do. They think one friendly provision is enough to make up for near wholesale waivers of other things, like spousal support, interest in retirement, ownership of businesses and real estate, and more.
Once you’re already married, you have some protections built in in the sense that, if you don’t agree, you can fall back on what the laws are in your state. You have a position of more power, from a negotiation standpoint. If you walk away, you’re still bound by the state’s laws – but you don’t have to walk away from the marriage itself. You only have to agree to something if it’s better for you; you don’t feel coerced into agreeing to something that makes you feel like you’re giving up too much (for too little return).
The marriage is really over, though – I don’t think I can negotiate a postnuptial agreement.
That’s fair. I do think it’s hard to suggest there’s something to work on when, in your heart of hearts, you know things are already over – no matter how desperate your husband may be to save things.
You know best and, if you say a postnuptial agreement isn’t going to work, it isn’t going to work. The best postnups set forth a series of conditions that, once violated, lead to divorce – but it is the hope of reconciliation that make both parties willing to come to the table. It’s often different to negotiate because of the hope of saving the marriage, especially compared to a separation agreement where all bets are off because both parties know that divorce is the only feasible option.
Most people negotiate separation agreements. Like I said, true postnuptial agreements are pretty rare. It’s not like this is our standard, everyday stuff. It’s just as viable as a prenuptial agreement, but that doesn’t mean that it happens all the time.
Still, the advice that applies to all agreements applies to prenups, postnups, and separation agreements: read it all, know what you’re signing, ask questions if you’re still unsure, and know that, once you’ve signed, there’s little you can do to change things.
For more information, to request a copy of one of our divorce and custody books, or to register to attend an upcoming seminar, visit our website at hoflaw.com.