Drafting Separation Agreements Without Enough Information

Posted on Dec 2, 2015 by Katie Carter

Getting a divorce is hard. Whether you leave it all up to a judge or you negotiate a signed separation agreement, it’s still pretty hard. No matter what course of action you choose, you’ll have to wade through some pretty serious minutiae, because everything is divisible in divorce. (Or, at least, it seems that way.)
Really, what’s divisible in divorce is whatever is marital. Anything you earned, acquired, or purchased during the marriage has to be divided. In a marriage, legally, at least, there’s really no such thing as “his” and “mine.” There is separate property, of course—but it’s only separate because it was purchased, earned, inherited, or acquired BEFORE the marriage. (Gifts and inheritances can be separate property if they were given only to you, by someone other than your husband, even during your marriage.) Though there are exceptions, most of what you have is marital if your marriage has lasted any length of time.
Chances are, you have real property, personal property (yup, all that stuff, down to your hair dryer and the guest bathroom hand towels, has to be divided, too), bank accounts, debts, investments, cars, boats, jet skis, tools and equipment, computers, televisions, bank accounts, stocks, bonds, mutual funds… The list goes on and on.
But… If you’re like most people, some of those accounts aren’t in both names. They’re only in one name—either yours or your husband’s—and, in the case of the accounts that are only in his name, you don’t necessarily know what has happened. You don’t have updated account statements or even necessarily a general idea of what’s in any particular account. Up until now, you probably never needed to.
Only now, when you’re starting to think about divorce, it looks like a huge question mark. That’s unnerving. And, probably, if you’ve met with an attorney, they’ve asked you a lot of questions about what you have—some of which probably made you feel a little panicked even then.
When it comes to divorce, how do you find out what you don’t know? What if you can’t give your attorney all the information they’re asking for? What if, at the end of the day, you just have no idea?

…In an uncontested divorce

Well, before you start to panic again, let me tell you: it’s totally normal. In fact, it’s really, really rare that I sit down to write a separation agreement and I already know all the answers to all the questions that fit into the puzzle. So rare. So, so, so rare. In almost every single divorce I’ve ever handled, there’s been some form of unanswered question. There has been an asset that I didn’t know how to value, or an account that we couldn’t get statements for.
Whether it’s a marriage with multiple millions of dollars or one where there are more liabilities than debts to divide, there are a lot of moving pieces. It’s hard to instantly have the answers. And, really, though you should do what you can to get the information that is available to you, you should also stop beating yourself up about all the things that you don’t know.
And you should also ask yourself whether it’s possible that, rather than being the exception, you are the rule. In most normal divorce cases, we don’t have all the answers at the start. But that doesn’t stop us from getting started! Quite the contrary, even. In most of my cases, I start out with insufficient information. Does it concern me? Of course it does. Do I do the best I can to get all the information? Absolutely.
In the long run, though, there are lots of things we can do to protect you. Our first step, of course, will be to do our due diligence to try to find what we don’t know. We can ask him for information, in some cases, depending on whether he’d be cooperative. You can do some digging through the important documents you have saved at your house; you’d be surprised what you can find with just a little effort. You can even call some places and request copies of records, especially if your name is already on an account. You can get copies of tax returns and other documents, which can give you an idea of where to look, too. A lot of times, getting other information can help lead us to other important information.
All that to say: don’t worry. Or, at least, don’t worry unnecessarily. It’s probably pretty impossible (not to mention unrealistic) to tell you not to worry at all. But, still. Remember: we’ve been here before, and we’re pretty good at getting the information we need. Relax, take a deep breath, and get ready to work through this.
Not to mention, we’ve got built in ways of protecting you, too. In fact, our separation agreements often include an “omitted property” section. In it, we say that any property that was either intentionally or accidentally omitted will be divided 50/50 (or, really, in any other way that we want—it could be 60/40 or 80/20 or even given in its entirety to the innocent/undeceiving party!). That way, if anything is discovered later on, we have a right of recourse built right in there.
We usually include something similar in the retirement account section, too. We say that we’ve included all the retirement accounts that we know of, but if an IRA or any other retirement account exists that we haven’t divided and it is later discovered, the wife still gets her marital share.

And what if it’s a contested divorce?

Though contested divorces are more difficult than uncontested ones, contested divorces give us extra tools to use. In a contested divorce, when we don’t know different pieces of the puzzle, we can use discovery.
Discovery is a formal process, and it’s specifically designed to help us figure out what’s there to divide in a marriage. We can use all sorts of different tools (like interrogatories, requests for production of documents, requests for admissions, etc) to help us figure it out and make sense of a complicated maze of assets and liabilities. In discovery, we formally request information from him (or his attorney, if he’s represented by counsel) and he has to respond.
When you’re negotiating a separation agreement, on the other hand, he doesn’t have to respond at all. Why? Well, because there’s nothing filed before the court yet. In an uncontested divorce, you don’t actually file until you have grounds—which means your one year of separation has to be up (or six months if you don’t have minor children and you already have a signed separation agreement). In a contested divorce, on the other hand, since you can file for divorce right away (because your grounds already exist), you can use the power of the court to get the information you want.
Before you start thinking, “Let’s just use fault based grounds and file first, then!” remember that it’s extra expensive and time consuming to file for divorce—which is why most people just don’t do it, even though discovery is a great thing to be able to do. (Of course, discovery itself takes time and has a fairly significant cost associated with it as well.)
In a contested divorce, though it’s costly and time consuming, there are specific methods in place to help us figure out this information.
Regardless, you don’t need to worry. If you don’t have all the information at your disposal, it’s probably possible to find most of it. We can ask for more information, too. If yours is an uncontested divorce, he doesn’t have to respond—but you might be surprised to see how many husbands do cooperate, when it comes down to it.
Don’t get frustrated. It’ll all work out. Having a trained and experienced Virginia divorce and custody attorney on your side can help make sure that things run as smoothly as possible. For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.