What makes a good separation agreement?

Posted on Sep 23, 2022 by Katie Carter

It’s the million dollar question, and it’s a hard one to answer because, frankly, what makes a good separation agreement is something that is completely and entirely subjective. Though you may have two women who’d answer the question the same – like, for example, that they just want it to be over, or they just want what they’re legally entitled to, or they just want custody – the actual substance of that answer, in terms of how custody, visitation, and equitable distribution are handled, would look very different.

We often say something along the lines of, well, you know an agreement is a good one when both sides walk away unhappy, but even that is vague and unsatisfying.

What does that mean, though? Especially when you’re in the throes of one of the biggest crises of your life. (I think it’s probably safe to say, that, however desired, divorce is – or at least, the experience of it is – a crisis.) There are a lot of feelings involved, whether you’re sad, angry, frustrated, bitter, resentful, or even happy, that can make it difficult to make careful, rational, considered decisions that take into account the various advantages and disadvantages of a particular position.

It’s not your fault, so please don’t take it that way. You’re going through a lot; in fact, there’s really no single greater financial transaction in an adult’s life than a divorce. Dividing up the accounts, the personal property, and the real estate that you’ve taken most of your adult life to accumulate is stressful. Determining whether spousal support should be awarded and then, if so, how much and for how long is staggering for anyone, especially if you think too hard about equating that amount to what you were ‘worth’ during the marriage. Seeing your children’s names listed in the divorce or custody pleadings, or fighting over how you’re going to have enough parenting time to be the kind of mother that you want to be is enough to drive anyone crazy, let alone dealing with all those things at once.

It’s easy to get carried away in the litigation. It’s easy to start to think that it’s about the principle of the thing, rather than the thing itself. It’s easy to lose sight of the forest for the trees, and about a million other cliches. It’s easy, even, to not know what’s most important to you, let alone how it should be divided based on what you’re legally entitled to receive.

It’s not just as easy as ‘entitlement’, either; in many things, like child custody and spousal support, there’s some wiggle room. It’s not a black and white answer. So, in terms of whether a settlement is a ‘good’ settlement or not, there’s some variability.

How do you know whether you’ve got a good agreement?

Whether you’re at a settlement conference, participating in mediation, negotiating a collaborative divorce, drafting your own agreement, or working with an attorney one-on-one in a traditional adversarial negotiation, it’s something you’ll probably wonder. When do you settle? When do you hammer back harder? When do you wait, silently? When are you aggressive?

In many cases, it’s a matter of your goals. I do think it’s always a good idea to make sure you have a firm grasp of the assets and liabilities at stake, coupled with an idea of what you’ll need to make a real go of it on your own. That means considering whether it actually makes sense to keep the house – not just whether you’d prefer to keep it. There are about a million considerations. And, once you’ve signed your agreement, there’s no going back, so you want to make sure you do the work up front.

That being said, though, the mark of a good agreement isn’t that you got everything you wanted. By virtue of the nature of divorce, that’s going to be almost impossible – after all, even though 50/50 division of the assets isn’t guaranteed in an equitable distribution state, that’s still the most likely practical outcome. So, which 50% means the most to you? Having some clarity on that score can go a long way, especially since you almost certainly won’t get everything you want.

There are better and worse agreements, but many fall within a fairly wide range of what is considered to be an acceptable outcome. Do you push for every advantage? Do you accept slight less, in an attempt to get it over with quicker, or to spend less in attorney’s fees, or to avoid the stress of trial? That’s ultimately a question only you can answer.

That’s part of why it’s so important to work with an attorney throughout the process. The attorney can help you itemize your assets, classify them, and then work backwards to a settlement that seems right or fair or reasonable to you. You likely won’t feel ‘good’; very few divorcing people do. A friend of mine recently told me that, at her settlement conference, she cried. She said it defiantly, like it was a dirty little secret. I had to tell her, gosh – really, almost everyone does! It’s normal to be sad, or angry, or whatever you’re feeling. I’ve even heard, once, of a husband laughing!

It’s not necessarily that its that traumatic, or that hilarious, but it is a mark of the amount of stress that divorcing people are under. While I don’t care about the impact on him, I do want you to be prepared for it to be an overwhelming emotional situation. Having someone on your side to help you run a list of totals so that you know whether you’re getting a really, really good agreement, or one where you’ve made some concessions (hey, there’s nothing wrong with knowing your limits, or ending when you feel like you’ve gotten enough because to keep going is just too painful to countenance) – and then analyze how you’ll feel about that.

It’s normal, too, to have some buyer’s remorse-type feelings when it comes to separation agreements. To help minimize the drama on that score, having good advice early (and often!) and at all the opportune moments is going to help you cope.

There’s no right or wrong to what feels like the best agreement for you, whether you push forward or hold back. There are all kinds of benefits to be had – peace, lower blood pressure, security, knowing its over, satisfaction, success, a feeling of revenge, or something entirely different – so your settlement may look different than someone else’s.

That’s okay. But you’ll want to work with someone so that you can make sure that it’s within the realm of normal.

For more information, to schedule a consultation, to attend a monthly divorce seminar, or to request a copy of one of our free divorce books, give our office a call at 757-425-5200 or visit our website.