Should I sign this separation agreement?

Posted on Jan 7, 2019 by Katie Carter

Every so often I hear from a woman who, panicked, tells me she has to have a separation agreement reviewed TODAY. She has to sign it right now, or there’ll be dire consequences. It’s an emergency! It has to be done now!

I hate these conversations for a lot of reasons, but, first and foremost, because I believe this is when really bad decisions with really long reaching consequences are made.
Separation agreements are never something that should be signed when you’re feeling a ton of pressure. It’s a careful, considered, measured approach to your divorce, and you should only take this step once you’ve had a chance to read it, have it reviewed by counsel of your choosing, participate in the negotiation process, and ask any questions you might still have.

Usually, these women really just want my rubber stamp – but that’s not something I can give easily. As is often the case in these kinds of situations, I generally have lots of follow up questions about the assets and liabilities described in the agreement. Sometimes, these questions aren’t easy to answer. Sometimes, they’d require a person to do a lot more digging to find a solution or resolution to the issue at hand. That’s not the answer they want. They want quick and easy. Well, I hate to tell you, but being careful where some of your most valuable assets are concerned is not often a quick and easy process. (You and I might also have differing ideas about what “quick and easy” really means.)

What have I found in these types of cases? Well, sad as it may be, pretty much all of them go on to sign anyway. Because they figure that, however bad their agreement is, they may be able to work out it. Or, surely the court will understand what they intended for the agreement to say. They probably hedge their bets and figure that it’s unlikely that a real problem will arise anyway, and, even if it does, they can’t resist the feeling that resolution is just inches away from their grasp. Today, today, today must be a refrain that dances in their brains.

Please – don’t do this. Don’t put this kind of pressure on yourself and your divorce. After all, you probably think that buying a house is a pretty big deal. Well, signing a separation agreement is BIGGER, because it divides ALL your assets (real property, personal property, retirement, investments, and even bigger, more important things, like custody and visitation).

Will the court hold me to my agreement?

Almost certainly! After all, that’s exactly what separation agreements were designed to do – help parties resolve all of their outstanding issues without having to go to court. There won’t be any exceptions made for you because you didn’t understand or you felt like you were under pressure to sign.

What if it’s not clear what the agreement was saying?

If it’s not clear what the agreement intended to do (as is sometimes the case when people who are unfamiliar with the legal system do the drafting, or someone like a mediator), you may have to go to court to have the judge interpret it. Chances are almost certain that this won’t overturn your entire agreement, it’ll just mean that the judge will decide how this particular provision will be interpreted.

That could easily result in tens of thousands of dollars being spent on your agreement to enforce it or define its provisions. And you could still lose – both your attorney’s fees, and also whatever you thought the agreement said that the judge decided was an incorrect interpretation. That’s not a big deal if it’s small potatoes (but who goes to court over small potatoes, right?!), but if we’re talking about your entitlement to a piece of real property or to the retirement assets… Well, let’s just say it can all add up to be a big, fat, frustrating, overwhelming, complicated disaster.

He won’t negotiate, and he says I have to sign today!

Yeah…. That’s shady. In that kind of case, I’d say that you probably shouldn’t sign anyway, just as a rule. What’s he trying to get you to give up? Why is he pushing so hard? This is a negotiation; both parties should have an opportunity to participate in the drafting of the agreement. If he’s denying that to you, I feel pretty certain that your agreement is a bad one.  What’s the REAL rush?

You do not HAVE to sign an agreement. You can walk away. It may mean that you have to file for a fault based divorce, but chances are good that you won’t go all the way through to a contested divorce trial. Most cases settle eventually (though, of course, some are harder to settle than others), and an agreement is entered. Chances are pretty darn good that he won’t be so belligerent that you have to go through a trial just because you walked away from the first draft of his proposed agreement – especially if you retain counsel!

Do I need an attorney?

If your husband is acting this way? Umm…yeah! It sounds like he’s totally trying to bulldoze you into signing a terrible agreement.

These are exactly the situations that scare me, because it’s where big mistakes are made. These are the types of cases where I see a hysterical woman weeks or months later, asking me what I can do to overturn this terrible agreement that she was basically forced into signing. (The truth? There’s almost nothing I can do!) If you feel like you’re being forced, or there’s this overwhelming sense of urgency, it’s even more important to talk to an attorney, have your agreement reviewed, and really think about what you’re getting yourself into.

Make no mistake, separation agreements are serious business. And I’ve seen some pretty terrible ones – ones that mean that people have really long-lasting consequences. Be careful. Be aware. Educate yourself. Ask questions. There’s no random self-imposed timeline that he can arbitrarily attach that is more important than your ability to seek counsel and ensure that you really, really know what you’re getting into!

A consultation with an attorney can save you a lot of time and trouble later. But, then again, if your intent on doing what you’ve already decided to do, it may not make much difference. You should know, though, ahead of time – the court will hold you to your agreement, however unfair you might feel like it is later on. You should take the time now to get good advice and make good decisions BEFORE you jump too hastily into something that you can’t back out of later on.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at 757-425-5200.