Even though attorneys tend to talk about all the different ways to get divorced (negotiation, collaboration, litigation, and so on), it’s really a bit misleading. Though there are different methods that you can choose to apply in your specific case, there are really only two ways to get divorced: in court, or by drafting and negotiating a signed separation agreement.
If you get divorced in court, you’ve chosen the “litigation” method of divorce, which means that you and your attorney and your husband and his attorney fight it out in court. You offer evidence, question and cross examine witnesses, and essentially make a case in front of a judge (there’s no jury in family law cases in Virginia) for why things should work out the way you want them to. At the end of the day, the judge’s opinion is the only one that matters. It is up to the judge to decide how everything (or, at least, everything that you haven’t reached an agreement on yourselves) should be divided—including the real and personal property, the retirement accounts, and the kids.
If you get divorced by drafting and negotiating a separation agreement, you’ve chosen negotiation, mediation, collaboration, or even do it yourself divorce to get your divorce entered. There are a lot of different methods of obtaining a separation agreement, but the end result is the same.
What do negotiation, mediation, collaboration, and do it yourself divorce really mean?
Negotiation
When you negotiate a separation agreement, you hire an attorney to represent you. Your attorney will draft an agreement, send it to the other side (to his attorney, if he’s represented by counsel, or to your husband personally, if he’s unrepresented), and then you’ll negotiate back and forth until you’re both ready to sign.
Mediation
If you plan to mediate your separation agreement, you and your husband will hire (and share) a mediator. A mediator may or may not be an attorney (though in most cases they aren’t). It’s not the mediator’s job to tell you whether a judge would award you more, or educate you about the law. It is the mediator’s job to help the two of you reach an agreement, any agreement.
Mediation is a great way to get divorced and save money. Mediators typically cost less than attorneys, and you only have to hire one, not two. Still, you’ll want to be really, really careful—since the mediator isn’t “representing” you and isn’t really concerned with what’s in your best interests, you have to do your homework ahead of time.
We recommend that women who plan to use mediators only do so after they’ve met one on one with an attorney. The attorney can give advice about the woman’s specific situation, and tell them what they think the judge would do. The attorney can calculate spousal and child support, and give the woman the tools she needs to go into the mediation with the information she needs to make a carefully calculated decision. We also encourage women to meet with the attorney again AFTER mediation, so that any agreement that the mediator prepared can be reviewed. (You need to make sure you know what you’re signing! There are no do-overs! Read on for more information.)
Just because you meet with an attorney doesn’t mean you have to hire one. Most attorneys will meet with you at their hourly rate for as long as you need. That way, it’s more like hiring an attorney to be a consultant on your case; no retainer agreement required.
Collaboration
In a collaborative divorce, you hire a collaboratively trained attorney to represent you. You also hire a divorce coach. Likewise, your husband hires a collaboratively trained attorney and a divorce coach. Then, you share both a financial and a child specialist. Together with your husband and your team of professionals, you agree to avoid court, share information, and work together for to reach an agreement that takes everyone’s best interests into account.
Do it yourself Divorce
Of course, you can also draft your separation agreement yourself! There’s no rule that says you have to hire an attorney to do it for you. For whatever reason, you may find yourself tempted to take things into your own hands. You’re not alone; lots of women these days are choosing to go at it themselves.
The problem, of course, is that, without hiring an attorney, you risk writing a worse agreement for yourself than your husband’s attorney would draft. You can find lots of free forms online, but they’re from nameless, faceless internet sources. Who wrote them? Was it written for Virginia law? Will it help teach you what you’re entitled to receive? After all, there are things you don’t even have to ask for or argue about; the law gives them to you automatically! Trust me, you NEED to know! Financially, there’s too much riding on your divorce to go in uninformed.
What is a separation agreement?
No matter what method you choose to negotiate your separation agreement, the end result is the same. You’ll have a legal contract (yes, it’s a legal contract even if YOU wrote it, using normal language, and even if you wrote it on the back of a Target receipt) that divides all the assets and liabilities in the marriage. Everything that the judge would divide in a litigated case (real and personal property, retirement accounts, kids, etc.) is up to you to divide, instead of the judge.
That’s good, right? In most cases, yes!
Virginia is an “equitable distribution” state. Equitable distribution means that we don’t automatically assume that all marital property is going to be divided 50/50. If your case was in front of a judge, he would consider all sorts of things—the fault of either party, negative and positive negative monetary and nonmonetary contributions to the family, and other important stuff—that led to the breakdown of the marriage. If the judge feels that someone’s good or bad behavior is important enough, he could theoretically (notice that I said theoretically) award a disproportionate amount of assets to one party or the other. Translation: if the judge thinks you’re good enough and your husband was bad enough, he could give you more of the marital stuff (or give him more of the marital liabilities).
Does this happen? Yes, but rarely. If you’re wondering whether it might happen in your case, it’s a good idea to talk to an attorney—but don’t get your hopes up. It is really extremely rare for a judge to award one party dramatically more than the other.
The more likely scenario is that the judge will divide everything pretty close to 50/50. Including the kids. But, as you are probably already aware, one half may actually be better (at least, as far as you’re concerned) than the other. When a judge decides how everything is going to be divided, you have very little control over which 50% you get.
I don’t need to tell you that finding yourself in that position is not exactly desirable.
So, how is it different when you negotiate a separation agreement?
When you negotiate a separation agreement, things usually come out pretty close to 50/50—just like they would in the majority of litigated cases. The major advantage with a separation agreement is that you have more control over which 50% you get. That way, you can prioritize the things that are more important to you (or sweeten the deal with your husband to get him to sign by giving him things that are important to him). Know that your husband wants the hunting property you own on the Eastern shore? “Trade” him, so that you can keep the marital home.
The control you maintain over how each item of marital property will be divided in your divorce is pretty important, and it’s a major reason why a lot of people choose to negotiate a separation agreement, rather than allowing a judge to call the shots.
A separation agreement is not valid until it is signed by both parties. Once you’ve signed it, though, it’s nearly impossible to “un-sign” it!
A separation agreement is usually achieved through a fair amount of back and forth negotiating. Usually, whether you’re drafting your agreement yourself or have hired an attorney to draft it on your behalf, you start with your strongest, heaviest hitting agreement.
If, on the other hand, your husband provides you with a draft separation agreement first, it’s safe to assume that he has given you his strongest, heaviest hitting agreement, too. (After all, it’s what we’d do!) It’s dangerous, because you’re thinking—hey, if I sign this thing, it’s all over and we can move on. But, the thing is, you don’t want it to be over unless you’re sure you’re getting what you need out of the marriage. Once you sign an agreement, you really can’t go back and change its terms later, if you find out that what you’ve signed is unfavorable.
We always tell our clients that they should read their agreement to be sure they understand it before they sign. Saying later that, “I didn’t understand,” or “I thought it meant something else,” won’t help your case.
Really? I can’t change my separation agreement AT ALL later on?
Well, in some cases it’s possible to change an agreement. If your husband agrees, you can negotiate what’s called an “addendum,” which basically attaches itself to the agreement like it’s part of the original document, and either adds or modifies terms in it. There is no addendum, though, if your husband doesn’t agree to it. It’s like the separation agreement—you can write all day long, but, without a signature, it’s just not valid.
You can also contest the agreement in court, but you’re very, very unlikely to get it overturned there. In Virginia, you can only get an agreement overturned if you can prove two things: (1) that there was duress (like, you were forced into signing it, like if he held you at gunpoint), and (2) that the agreement was unconscionable (no reasonable person would have signed that agreement).
Duress and unconscionability are BOTH difficult things to prove. Unless he literally held a gun to your head and threatened to physically harm you or your children, it’s probably not duress. Making vague verbal threats or psychologically bullying you into signing isn’t enough on its own. It helps, but it’s not enough. Duress is pretty extreme.
Unconsionability is difficult, too. If there’s even a small concession towards your side, it’s very, very likely that the judge wouldn’t find that the agreement is unconscionable. Why? Well, because people sign bad contracts all the time, for lots of reasons. If you signed something bad to get away from the marriage, the judge will think that you getting away was worth enough to you that you gave up an interest in other things. Basically, the divorce becomes a “bargained for” benefit of signing the contract. An unconscionable agreement would be one that gave one side absolutely, positively, literally EVERYTHING in the marriage.
Not only that, but you have to have BOTH of those things present at once. Duress isn’t enough, and unconsionability isn’t enough. You have to have duress AND unconscionability at the same time. It’s pretty darn near impossible.
Why won’t the judge help me?
There are a lot of reasons why the courts won’t just overturn agreements—even bad ones—willy nilly. Mostly, though, it’s because the people who sign and negotiate contracts deserve to feel that their agreements are final. If the court went around overturning agreements, no one would be comfortable signing one, and they’d always wonder whether the other side was going to back out at the last minute. Think about it. If you knew that judges overturned agreements all the time, would you be comfortable signing one? Would you be afraid that you’d perform your side of the obligations, only to have the other side weasel its way out of doing what it promised you it would do?
Judges want to promote the ability of private people to make contracts. Why? Well, when people can negotiate and settle things for themselves, there’s less for the judges to do. Court dockets are super backed up in most jurisdictions, so when people are able to settle their cases, they make way for judges to spend their time deciding things that can’t be settled. That means that people can be heard in a more reasonable amount of time.
Not only that, but people who settle their cases tend to be happier with the outcomes, so people settling their cases saves the judge the time and trouble of deciding it, and it results in happier people. Besides, reasonable, rational people should be able to settle their disputes without the court interfering, right?
Agreements are difficult to overturn because the judge wants to promote private people settling their issues themselves. (And, after all, that leaves more time for golf, right?)
If you’re wondering whether your agreement can be overturned, you probably want to talk to an attorney, but you should be aware that it’s probably pretty unlikely. Give our attorneys a call today at (757) 425-5200 to discuss your specific case.