Hocus Pocus: The “Magic” Words in your Separation Agreement

Whenever someone brings in a contract for me to review, they always ask me if it does what they think it does. “Will this work?” they ask me, nervously.

The truth is that a contract does whatever it says it does, and nothing more. That may sound obvious, but most people seem to think that there are certain “magic” words that must be present for an agreement to be valid or enforceable. That’s not true. In fact, an agreement can come in all different forms and, if it’s signed, it’s probably valid. I’ve heard horror stories of women who signed agreements written on beverage napkins, thinking that the agreement wouldn’t pass muster because of its informality. I’ve listened to women’s tears when they found out there was nothing they could do, that their agreement, however unsophisticated, would stand up in a court of law.

There are no magic words. There are only regular words, and the importance given to them by your signature. If you sign something, whether you think it’s a joke or not, the truth is that you could be giving up legal rights.

If you went to an attorney and had him draft an agreement for you, chances are your agreement would include a lot of weird words. Lawyers seem to delight in using words such as “hereinafter,” “heretofore,” “wherefore,” “whereas,” and “thereafter.” A lot of times, they’ll even add in random Latin phrases, like “sui juris,” “a vinculo matrimonii,” and “pendente lite.” Regular people don’t go around talking like that! You wouldn’t say, “Yes, as a matter of fact, my husband and I have been living separate and apart, without interruption and without cohabitation, for the duration of the statutorily required period.”

If you want to draft your own agreement, you certainly can. Your agreement will have the same validity as an agreement drafted by an attorney, printed on expensive paper, and watermarked with a fancy logo. It’s not a matter of including the “right” words; it’s about speaking clearly and concisely, and making sure your agreement says what you think it says. The best way to make sure that your agreement is clear is to write in plain English. Don’t try to write an agreement like you think an attorney would, and make lengthy, confusing sentences. Write short sentences using your normal vocabulary.

Don’t make matters more complicated. If you write your own agreement, write sentences that you understand, so that both you and your husband are aware of what you’re signing.

My law firm teaches a course to women on what they need to know about divorce and in every seminar we say, over and over, “Don’t sign ANYTHING without getting an attorney to look over it first!” We know that husbands have a tendency to try to pull a fast one over on their wives once they’ve given up on the marriage. One of my biggest fears, though, is not that a husband will draft the terrible agreement that screws a wife over—it’s that the wife will draft that agreement herself.

If you’re going to draft your own agreement, be very, very careful. Make sure you’ve written your provisions in simple, straightforward language. Also, make sure that you have a little knowledge of the law and what you’re entitled to—otherwise, you could be writing your own obituary.

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