Can I represent myself in my separation agreement?

Everyone wants to save on attorney’s fees. No one likes the idea of shelling out all the money for a retainer and ultimately having very little control over how much a divorce costs. It feels like a blank check, and at a time in your life where you’re probably even more concerned about how every single penny is spent than ever before. No one likes that feeling.

So you start to think about whether you can draft and negotiate an agreement yourself. After all, how hard can it be?

In a lot of ways, drafting an agreement isn’t that complicated. It’s not Chaucer or Shakespeare, after all. We aren’t worried about meter or rhyme or symbolism. But, at the same time, there are a whole lot of opportunities to make mistakes, and, if you’re preparing to represent yourself in the negotiation of an agreement, you should be prepared.

A friend of mine – we’ll call her Anne – got divorced awhile back. Even though she lives in Virginia, she doesn’t live anywhere near me, so I couldn’t represent her. I did, though, talk to her a bunch, and gave her some general advice for how to move her case forward. She hired an attorney, and, for awhile, it seemed like it would all be okay.

Then she ghosted me. It took me a few weeks to get back in touch with her. At that point, she told me, her settlement conference was the following day, and her attorney had withdrawn from her case. Her attorney gave her some guidance for the settlement conference, but she was on her own.

Afterwards, she asked me to review the agreement. I took a look at it, and it was basically pretty okay. It wasn’t too far from a lot of the things we had discussed, and she did it all on her own. I admit, I was a little proud of her. It’s not easy, after all, to face down a retired judge in a settlement conference, as well as your soon to be ex husband and his lawyer (who, by her account) is pretty aggressive.

Then, she told me, almost nonchalantly, that it didn’t include a loan from her parents to her and her soon-to-be ex.

Wait, what? What loan?02

“Yeah,” she confirmed. “There was a loan.” The loan made it possible for her and her husband to buy their home, and they hadn’t repaid it – to the tune of nearly $50,000. No, she told me, there was no loan paperwork. Nothing memorializing the terms of their agreement. Nothing.
She wanted to refinance to buy back the house, but her credit score had taken a beating during the time between their separation and their pendente lite hearing, when she got temporary child and spousal support established.

Without the loan paperwork, though, her soon to be ex was insisting that she buy the house from him at the current market rate – without accounting for the $50k loan. She asked me what she could do. In the current housing market, she was afraid that she couldn’t afford anything else if she couldn’t keep this house, especially since she really thought she shouldn’t have to pay full price for it.

Her parents weren’t really expecting her to pay the loan back – it’s not so much a question of loan repayment. It’s not that she expected her ex to pay back the loan. But he didn’t even acknowledge that it existed, and so there was really no basis – not in the agreement, anyway – for her to assert that she should be able to purchase the home for less than its current market value.

Without that reduction, she really couldn’t qualify for financing on the home. Her point? They purchased it already at a discount – and not market value – and she wanted that to carry over to this re-purchase. Her ex, though, just wanted to make more money off of it, and, since there was nothing stating what had happened or acknowledging a single version of events, it all got convoluted and messy.

Can she keep the house? We’ll see.

What does that have to do with you? Well, it just goes to show how easily mistakes can be made. I’m not saying that having an attorney is a 100% guarantee that things will go perfectly; after all, we’re only as good as the information we have. But the chances are much, much better that an attorney will be able to keep collected and keep perspective in challenging circumstances.

Agreements aren’t that complicated, on the one hand, but, on the other hand, there’s a lot of risk that mistakes made will cost the people involved dearly. And without experience drafting them, it’s easy to make mistakes. It’s easy to be insufficiently clear, so that someone who reads the agreement has trouble understanding what you meant. I was working on an agreement this morning – drafted by a new client of mine – that illustrated this perfectly.

In one paragraph, it looked like she was saying one thing, and in another she said the complete opposite. Even knowing her, I was completely confused.

Can you represent yourself? Yes, absolutely. Should you? Well, probably not.

Keep in mind that you don’t have to hire an attorney to work with one. You can always meet with an attorney to have an agreement reviewed that you’ve drafted, or to see what you’ve accomplished in mediation. Keep in mind that you’ll want to disclose all the relevant information – like random, undocumented loans to your parents – so that your attorney can give you the best advice possible, and so that the agreement you draft will be as comprehensive as possible.

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