Common mistakes in homemade separation agreements

Lots of people choose – for many different reasons – to try to draft and negotiate their own separation agreements. In some ways, I understand, especially in cases where the parties share very few assets, if any, in common, and didn’t have children together.

Sometimes, though, it happens in even more complicated cases. In fact, recently, a woman brought to me an agreement that she had prepared herself. After twenty years of marriage, a military career, shared retirement, a marital residence, and more – it was, needless to say, not exactly a case with very few assets.

While I can understand why a person would want to just get it done quickly and easily, without incurring the expense of a lawyer, I can’t understand why you’d really risk jeopardizing tens of thousands, hundreds of thousands, or, sometimes, even millions of dollars worth of your specific entitlements in order to avoid it.

Let’s start with the obvious question:

How much does it really cost to work with an attorney, and do I have to hire one to help me in my divorce case?

If you just don’t have the money to hire an attorney, you just don’t have the money. I get it. Everyone is on a budget, and if attorney’s fees don’t fit into yours, that’s okay. You should probably have an idea, though, of what attorney’s fees in your area really look like before you decide that you just really can’t even afford it. I can’t tell you how many times that I’ve asked this question – how much do you REALLY think it costs? – only to find that the woman has no idea at all.

In our area – Hampton Roads, Virginia – attorneys typically charge hourly rates between $200-500. This isn’t Northern Virginia or New York City, where rates are exponentially higher.

We bill hourly, as work is done. It’s on a “time expended” basis so, although we collect retainers (an amount of money paid up front and put into an escrow account for later billing), that money is yours and is refundable to you if not used.

The horrifically expensive cases that you’ve heard about are typically nasty, contested cases that drag on for years in court. Most cases aren’t like that, and aren’t anywhere near so expensive. In fact, separation agreement cases often cost $5,000 or less. It’s hard to give an exact ballpark estimate, knowing nothing about you or your case, but I’m speaking in generalities here. Sure, some cost more, but some cost less, too.

Five thousand dollars is still a lot of money, but, in most cases, we’re talking about some expensive assets. Even for a normal family, it’s nothing to have retirement accounts with a couple hundred thousand dollars in them, and a marital residence with a similar amount of equity. Surely, when you’re dealing with assets you’ve invested so heavily in over such a long period of time, you’ll want to be sure you’ve divided them accurately, without shortchanging your own portion, right?

Also, you don’t have to hire an attorney to consult with one. I’ve worked with many women over the years who just come in to have their agreements reviewed. Then, they just pay my hourly rate, and I let them know what concerns I have about their agreement. Since they don’t hire me, I usually don’t hear what happens. Does she sign it as-is Does she go back and make revisions? I don’t know, but at least she goes into it with eyes wide open.

And then, a second, related question:

How much money do you have to spend, later, to resolve things that should’ve been resolved in your divorce – but aren’t?

Our goals in divorce are two fold: to get your divorce today, but also to minimize problems later on down the line.

Your divorce isn’t exactly a bargain if you end up fighting over what your agreement was supposed to mean later on, or if your husband did something shady like deliberately leaving out property.

Some of the post divorce stuff can run up legal fees of tens of thousands of dollars, too – and, in many cases, it’s unnecessary.

Just because you get a judge’s signature on that final decree of divorce doesn’t mean things are over forever, especially not if your agreement is incomplete, ambiguous, vague, confusing, or misleading. And that’s often what I see from homemade agreements, so tread carefully.

And, finally, 3 common mistakes I see in homemade agreements:

You want to write your own agreement anyway? Sure. No problem. Lots of people still do, of course, every single day. But here are a couple common mistakes that I’d advise you to avoid.

1. No specifics.

Splitting the bank accounts? Refinancing the marital residence? Great! Make sure you put a specific timeline in there. Just generally saying, “The bank accounts will be divided, and then closed,” is not enough. Make sure you specify that something will take place within 30, 60, or 90 days – or some other reasonable timeframe, given the specific limitations you’re working with.

It’s hard to argue that someone hasn’t complied with the agreement if there’s no time frame in there. He could go to court and say, “Well, yes, your honor, but we agreed verbally to do it after two years.” Maybe it’s a total lie, but how will the judge know?

The more exact specifics, the better. (And don’t rely on him to do what he said he’ll do, even if the agreement doesn’t reflect it. The agreement should ALWAYS reflect exactly what your agreement is – and if he intends to do it anyway, he shouldn’t fight you on including language that reflects that agreement!)

2. Confusing language and conflicting provisions.

Make sure it’s clear what you’re referring to. Use charts if you need to, but make sure you’re being very, very clear.

The homemade agreement I reviewed the other day referenced $35,000 in like three different places, and I was never sure whether it was the same $35,000 or whether he was supposed to pay her $35,000 three different times for three different things. It seems like a random amount of money, so it sort of pinged my curiosity from the beginning. Make sure you specify what each payment is for, what the total amount is, and make sure it’s obviously distinct from any other payment of any other similar amount of money.

Don’t feel the need to use legal language, especially if you don’t understand it. Write your agreement in so uncomplicated a manner that a third grader could read it. No need to include Latin, “heretofore”, “moreover”, or “hereinafter” if it just confuses the issue – and, chances are, it probably does. Plain English, please.

3. Bare bones.

As you can probably imagine, a homemade agreement doesn’t often have much pizzazz. They usually include exactly what the parties have agreed to and nothing else.

That means that a lot of provisions that we often include for a woman’s protection are left out. We include provisions on omitted property, and what happens in the event that one party has to take the other to court to enforce the terms of the agreement.

We also add in provisions about social security, bankruptcy, and tax returns.

Also, it’s important to mention that it’s a good idea to mention ALL your assets – even ones that you contend are not marital, but separate. List them, including the last four digits of the account number, and mention that you both acknowledge that they are the separate property of one or the other of you.

If these cases go to court later, it’s helpful if the judge can look at, say, checking account number 1234, and see that it was specifically defined as one that belongs to you separately.

Separation agreements are complicated! They’re designed to protect you, but can only do that if they’re well and considerately drafted. It’s not something that you throw together just because you need one to get an uncontested divorce.

Charlie Hofheimer, the founder of our firm, used to tell me that a separation agreement is a woman’s Bill of Rights, Declaration of Independence, and Constitution, all rolled into one document! It’s hugely important, and it’ll help you tremendously to get it right the first time.

If you need more information on your specific rights and entitlements, request a free copy of our divorce or military divorce books, or register to attend our monthly divorce seminar. Need an appointment? Give our office a call at 757-425-5200 to schedule an appointment today.

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