Drafting Your Own Separation Agreement
These days, more and more people are committed to drafting their own separation agreements, or, really, doing pretty much whatever it takes to get divorced without hiring an attorney. As far as I know, there’s really nothing out there that can help you take on a litigated divorce (that is, a divorce where you have a trial and let the judge decide how everything will be divided) on your own, but there are plenty of resources out there to help you if you’re interested in drafting your own separation agreement.
Of course, you have to be careful. But you knew that already, right? There’s a lot at stake in your separation agreement, because it’s the legal contract that formally divides the assets and liabilities in your marriage. It determines how much of the retirement and real estate you’ll receive, how custody and visitation will be shared, and how the debt will be divided. Let’s just say you have a very real stake in this, and you want to be sure you get it absolutely, positively right.
To get you started along the right path, here are some tips for drafting your own separation agreement, designed to help make the process seem a little bit easier and less daunting. I know, it’s a big deal; but there really is no reason that you can’t handle it yourself.
1. Write in plain English.
There are no legal magical words. There’s no special hocus pocus you have to include. It doesn’t have to look or sound a certain way or be written on fancy paper.
If you’ve written out provisions that determine how your assets and liabilities will be handled and you and your husband have signed it, it’s legally binding.
It probably goes without saying that you should write something that is quickly and easily understood by both you and your husband. Use the words that you would use conversationally, and don’t try to squeeze in words that “sound good” or “look legal.” That’s just asking for trouble. There’s no need for you to put in words like “heretofore,” “notwithstanding,” or even those obnoxious Latin phrases that lawyers like to use—especially if you’re not sure what they mean. You’re not doing yourself any favors if you write an agreement that doesn’t make sense to anyone who reads it.
Remember: this agreement is the foundation for your new life. To be able to use it effectively, you’ll need to understand it.
2. Be clear and unambiguous.
Along the same lines, you also want to make sure that your agreement makes logical sense. A lot of times, people get caught up and overcomplicate (or oversimplify) things.
I find that it usually works best when people (especially non attorney people who want to write their own separation agreements) write and re-write their sentences a couple of times. The first time, it’s more important just to get something down than it is to have it be exactly right. Then, on each subsequent revision, you can make the sentence better and better.
It’s also not a bad idea to do a read-through with your soon to be ex sometime before signing, so that you can talk about what the provisions mean to you. It may be a surprise to you to find out where you don’t see exactly eye to eye, even when you thought you were being crystal clear!
When people disagree about what an agreement says, they have to go to court and a judge interprets it. That’s not ideal for a number of reasons. For one thing, it costs money. For another, the judge might not side with you! The best way to make sure your agreement says what you think it says is to write clearly and concisely. Write and re-write your sentences until you get it right. Have a neutral third party read and tell you what he/she thinks a particular provision means. If you and your husband are cordial, talk to each other while you’re drafting. Make sure you both are thinking along the same lines. It’s definitely time well spent.
3. Draft an agreement that can grow with you.
The best agreements are the ones that solve problems before they arise, especially when it comes to your kids. Your agreement should resolve the issues that you’re facing now, but it should also be forward thinking, so that you don’t have to revisit issues later or go to court if you can’t agree.
As far as your finances and property are concerned, everything will pretty much be handled in your separation agreement. You’re really only entitled to a portion of what’s marital, which is generally relatively easily determined. As far as that goes, you really just have one shot; once your separation agreement is signed, you can’t go back and change it later, unless you’ve reserved some issue to be determined later, or if you have an omitted property provision (more on that later).
The kids, though, will grow and change. And what’s appropriate for them will grow and change. Unless you write it that way, though, your agreement won’t grow and change with them.
Custody, child support, and visitation are always modifiable based on a material change in circumstances. So, until your child is 18, you’ll have to deal with the possibility that you could, especially if you don’t already have an agreement in place that addresses your custody issues, be forced to go back to court to litigate.
The best separation agreements expand as the children grow, allowing for custody and visitation to change as different arrangements become appropriate. What’s “appropriate” is up to you and your child’s father to decide, but if you address custody and visitation with a forward-thinking attitude, you will likely wind up with an agreement that serves the dual interest of keeping the best interests of your child(ren) at the forefront, and keeps you out of the courts.
4. Include a provision for omitted property.
One of the first questions I get (almost always!) from women when I start to talk about the advantages and disadvantages of writing your own agreement is “What if he’s hiding something from me?”
It’s a real fear for many women, especially as they begin to consider whether they might be able to avoid hiring an attorney. Without someone else to look out for them, they worry, how will their husband be caught if (as they already suspect he is doing) he’s hiding things?
Some husbands do hide things. They have secret investment accounts or bank accounts. In some families, because one spouse is more responsible for the finances than the other, anything could be hidden. Charges on credit cards, withdrawals from 401(k) accounts, and other things could have completely escaped your notice.
The thing is, though, most of the time, with separation agreement cases, we don’t do formal discovery. Discovery is the process where we find out what exists to be divided, but it’s really usually only something we do in contested divorce cases. In separation agreement cases, we agree to lay all the cards on the table, and be forthcoming with the other side. We rarely find that there are problems with this approach, especially if there’s an attorney on the other side.
We also use an omitted property provision. The language may vary, but the general gist of an omitted property provision is that any property that was left out, whether purposefully or accidentally, will be divided a certain way. We may decide to divide it the same way that other things were divided in the agreement (or, at least, according to the same method), 50/50, or by some other means. If, for example, property was deliberately omitted or hidden, we can say that the wronged spouse gets a greater percentage. If you find out later that there was hidden property, you can take your husband back to court and ask that the property be divided according to your separation agreement. It’s a great way to protect yourself.
5. Be creative.
Don’t be afraid to make your separation agreement be what you need it to be. There’s a lot of freedom here, so you should feel comfortable drafting provisions that work for you.
Attorneys do that. When we meet with clients, we talk to them and ask them about their goals and plans for the future. We can’t always make it all happen (because, of course, a separation agreement is only valid if it’s signed), but we can go a long way towards paving the road for the kind of post-divorce life you envision for yourself.
In some ways, you may find that your goals and your future ex husband’s goals align. Even if not, you may be able to negotiate with him by giving him something he really wants in exchange for something you really want. It’s a negotiation, and there’s more freedom that you might think. Draft an agreement that reflects your goals (and don’t just adopt a random form agreement you find on the internet—those are super lame), and you’ll be happiest in the long run.
It’s absolutely possible to draft your own separation agreement. It can be tricky to find the right information online, but you’re clever and have some important tools at your disposal. Do you need more help getting started? Request a free copy of our report, The Advantages and Disadvantages of DIY Divorce, on our website, DesignYourDivorce.com, a do-it-yourself Virginia divorce resource for women who want to write their own separation agreements and, ultimately, get divorced. Questions? Give our office a call at (757) 425-5200.