Should I draft my Virginia separation agreement first — or let my husband do it?

Posted on May 25, 2016 by Katie Carter

Getting started with a divorce is always tricky. There are a lot of feelings involved, and, a lot of the time, no one really wants to be the first to pull the trigger, so to speak. They wonder whether they might be better off to wait it out and let their spouse make the first move, whatever that move may be.
If your husband hasn’t made a move yet, it might be tempting to wait. After all, hiring an attorney is sort of scary, and it costs a lot of money, so there’s no sense jumping the gun and making a move. Right?

Why not just..wait?
Whether you want the divorce or you’d prefer to try to make it work, there’s hesitation there. There’s also a sense that, in a way, you’re opening Pandora’s Box, and once you start, there’ll be no stopping. (But that’s really not true, that’s just your fear talking.)
If you’re like most women, you’re hoping to move forward with an uncontested, no fault divorce, rather than a fault based divorce.  You’re hoping so, because uncontested divorces are cheaper, less time consuming, and much less likely to turn the two of you against each other (which is a major concern if you have children together and are going to need to co parent together in the future).
To get an uncontested, no fault divorce, you’ll have to negotiate a separation agreement. A separation agreement is, simply put, a legal contract that divides all the rights and responsibilities of the marriage between the parties. Everything, from real estate to retirement and custody and visitation, will be divided in the agreement—plus debts, mortgages, lines of credit, loans, and other liabilities.
A separation agreement is a contract like any other contract you’ve seen—it’s in writing, and it has to be drafted. That means (obviously, I think) that someone is going to have to take the lead and draft the first draft.

Do you want to write the first draft?

That’s a personal question, and I think a lot of it depends on how you feel about the divorce in general. If you’re for it, you may wish to take the lead. If you’d prefer to go to marriage counseling and see whether your marriage can be saved, you might want to wait until he forces your hand.
There are advantages and disadvantages to drafting the first draft. The major advantage is, of course, that your attorney is drafting it on your behalf, and the first draft is dramatically in your favor. (Keep in mind that this is a negotiation process, so the first agreement will propose more than you’ll likely receive, just so that there’s room for a little give and take as you go back and forth on the issues.) Even once your husband (or his attorney, if he’s represented by counsel) have had a chance to make changes, it’s likely that some of the vestiges of the original agreement will be preserved. When you have control over the shape the agreement takes at the beginning, you control a lot. It definitely puts you in a strong bargaining position.
The major disadvantage is that, obviously, it costs to draft an agreement. If you’re drafting the first draft, it’s likely that you (and only you) will bear the cost of having the first draft prepared. Most law firms have a minimum charge for this type of work. Ask you attorney what he or she charges, so that you know ahead of time what to expect.
Me, personally? I like to draft the first draft. I like to use my agreement, my terms, and set it forth my way from the very beginning. Is that a choice you’re going to want to make? Again, like I said before, it’s a pretty personal decision, and, in a lot of ways, I think it relates back to how you feel about the divorce in general. Is this something you want? Are you afraid he’ll drag his feet? Do you want to take charge and shape your case from the beginning? If so, you may want to consider moving forward sooner rather than later. I’d rather work from my own draft of an agreement than from someone else’s draft.
If, on the other hand, you’re really hoping that you won’t get divorced, or you’re at a financial disadvantage and you want to force his hand, it may be that you choose to wait to act until he drafts the first draft. That’s fine, too, just so long as you know not to be tempted to sign his proposed separation agreement without getting it reviewed by an attorney first.
Someone asked me the other day, “What if he drafts one and I draft one? Which do we use?” Believe it or not, that’s not really something that happens all that often. Most of the time, if one side drafts an agreement, it’s sent on to the husband (or, again, if he’s represented by counsel, to his attorney), and then the other works from that draft. It’s pretty rare that both sides are developing an agreement and then magically send them to each other at the same time.
If you’re worried about that, though, and you and your husband are still able to talk civilly to each other, why not ask him? There’s certainly no sense in both of you paying to have an entire agreement drafted. Though both drafts will be used, one document will be the primary one used as negotiations move forward. Usually, the agreement used is the first one provided—but, again, it’s pretty rare that both parties would have one drafted at the same time.
Do I need to have an attorney to get a separation agreement drafted?
Do you want to draft your own agreement first? Or would you prefer to wait to act until you have to do something? It’s really up to you. In a lot of ways, I think it’s advantageous to choose to move forward first—even if the only advantage is psychological. It helps you to feel in control of the situation, and ensures that you’ll speak up for what you deserve.

Why let him frame the discussion when you could start the discussion yourself?

You don’t have to, if you don’t want to, but it’s probably safe to say that it’s preferable. Attorneys protect their clients best interests which, in a divorce, is incredibly important. Divorce is one of the biggest financial transactions of most adult’s lives, simply because so many assets and liabilities are involved. Not only that, but having a divorce attorney on hand to protect you through the process can help you avoid time (and money spent) in court later, defending or attacking your agreement.

How will I know if he’s drafted a separation agreement?

A lot of times, when a marriage is over, husbands and wives don’t necessarily know what the other is up to, and talking may not be an option. (Sometimes, it is, and, if so, don’t hesitate to open the dialogue. It can be very helpful.) It’s hard to know whether you should get a move on, or whether you’re days away from seeing a draft of an agreement from his attorney.
It’s hard to know, but nothing is certain until a draft of the separation agreement has been given or mailed to you. It won’t be “served”; that’s reserved for when a complaint for divorce is filed. (In Virginia, you have to receive personal service, or the served documents can be posted to your front door.) If a complaint is filed at this stage, you’re looking at a contested divorce, rather than an uncontested one. Remember that, once you receive a divorce complaint, you have 21 days to respond, so you’ll definitely want to get moving.
How can you tell the difference? Well, first of all, figure out whether you were served, or whether you (or your attorney) just received something in the mail (or your husband handed it to you; he can’t serve you). Then, read the heading. Does it say “separation agreement” or “marital separation and stipulation agreement” or “property settlement agreement” on the top? Then it’s a separation agreement. Does it say “complaint” or “bill of complaint” on the top? Then it’s a complaint. Simple enough, right? Still, you’d probably be surprised how many people get this confused!
If you’ve received a copy of a separation agreement from him or his attorney, don’t sign it. Get it reviewed first.
There’s no time limit here, so you don’t HAVE to do anything. If you ignore it forever, though, or refuse to sign, it’s likely that he’ll eventually move forward with a contested divorce, and you’ll get served with a complaint. Talk to an attorney about your particular case, but that’s probably not the course of action you’d prefer to follow. Uncontested divorces are often better because they’re cheaper, easier, and result in the parties getting more of the assets that they want (rather than letting a judge make the decision on their behalf). Wondering what to do? Meet with an attorney, and come up with a plan of action for your unique case.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.