How does a separation agreement work? Does it mean I’m “settling?”

Let’s talk about separation agreements. Let’s talk about what they mean, how they work, and the types of things that are included in them. I find that, when I talk to women who come into our office, they are really misinformed about what a separation agreement is—which is always surprising to me, because, on the other hand, they know quite a lot about the court process. Considering how many people get divorced through separation agreements (almost all) and how many people litigate their divorces in court (very, very few), it’s strange.
“Let’s settle this one.”
For whatever reason, settlement has a negative connotation. Maybe it’s all the ads you’ve seen on TV for personal injury lawyers. They’re full of catch phrases, like, “No fee unless we get money for you,” and “we let the insurance companies know you mean business.” They call themselves “bull dogs” or “pit bulls” in the courtroom. They make it sound like settlement means that you’ll get less, like you need to take your case to trial to make the bad guy pay.
There’s certainly a place for personal injury lawyers. But, for some reason, most of the awareness people have of lawyers is because of their exposure to personal injury lawyers, which means that they are often pretty misinformed, at least, as far as it relates to how family law is practiced. We don’t practice that way. Family law is a different entity entirely.
For one thing, there are probably not millions of dollars at stake (unless you had millions of dollars before you separated). We’re not suing an insurance company or someone with particularly deep pockets. In fact, in most cases, you know (or at least, can guess) exactly how deep our opponent’s pockets are. There’s no question that we will work hard to get you what you deserve, and we can certainly be a “bull dog” when necessary (though, in some cases, a softer touch by a firmer hand is what’s required, and we know enough to tell the difference)—but we also know that your best interest is served when we preserve as much of your money for after divorce as possible.
For another, at least as far as divorce is concerned, settlement isn’t a bad thing. In fact, it’s usually the best outcome possible, and it doesn’t mean that you settled for something less than the best. In most cases, settlement is ideal because it saves money and gives you some measure of control over how all of your things are going to be divided.

You’re saying I don’t want to go to court?

A lot of people are surprised when they hear that, at least in divorce, the goal is NOT to make it all the way to trial. In fact, in most cases, we do everything possible to avoid going to trial. Though all of our attorneys are experienced and trial-tested, trial is usually considered our absolute last resort, when all efforts at settlement have failed.
Trial is expensive and time consuming. Not only that, but it doesn’t often yield the best results, either. In fact, I think it’s probably pretty safe to say that it almost never yields the best results. By the time we’ve spent all the time preparing for trial, it has cost enough money that there’s no possible way it could yield better results than if you had settled and divided the money you would have had, before you and your husband spent it on attorneys.
A lot of people, on both sides of the litigation, seem to think that the judge will just automatically see things their way. Maybe he will, maybe he won’t; at this point, it’s all but impossible to say. It’s a good idea to have a talk with your attorney before you go to trial. Ask her, realistically, how much it might cost to prepare for your trial. Ask her, realistically, whether she thinks that you would get more from the judge in terms of your award of equitable distribution (that’s just the fancy word we use to describe how property is divided in Virginia during divorce) than you would spend in attorney’s fees. Then, ask yourself whether the juice is really worth the squeeze. Is it worth the costs, both financially and in terms of your physical and mental well being?
It’s not a question of principle, or of getting your “day” in court—those things are expensive. It’s a question of calmly and rationally making the decisions that will allow you to provide yourself with the kind of fresh start you need after divorce. In my experience, normally it’s not trial that provides that.
What’s a separation agreement?
A separation agreement is an alternative to going to court to get divorced. Basically, you can get divorced in just two ways: either in court, or by agreement. You can enter into an agreement in a number of different ways, including negotiation (with or without an attorney), collaboration, and mediation. The method is up to you, but the end goal (the agreement) is the same.
In an agreement, you and your husband decide how everything will be divided for yourselves, instead of letting a judge decide for you.
A separation agreement is a legal contract, just like other contracts you’ve entered into—like when you joined your gym, bought your house, or opened a bank account. Legal contracts are binding legal documents, which just means that the court has power to enforce them. The court can make a non-performing party perform, or punish them if they choose not to perform. That way, you’re protected—you can rely on a contract, knowing that the other side will have to do what they’ve agreed to do.
Of course, it goes both ways—just like the court can force your husband (or the gym, or the people who sold you your house, or the bank) do what the contract requires them to do, it can also make you follow the contract, even if you didn’t read it, didn’t understand it, or it’s terms are now no longer beneficial to you.
Once signed, contracts can’t just be un-signed. It doesn’t work that way, or else people would be constantly afraid that their contracts would suddenly, one day, no longer be valid. Why would people settle things on their own, if a contract was a thing that could be easily un-done? They wouldn’t! And judges really, really want people to settle things on their own, if they can, because they are already overwhelmed by super packed dockets. With all the other things going on out there, there are plenty of other things that judges need to decide, and they’d prefer not to waste their efforts where a settlement could reasonably be reached (especially since that means that the people involved are exponentially more likely to be happy with the results).
Contracts are great. Separation agreements are fantastic, especially when a good result is carefully negotiated. Still, you have to take signing a legal contract seriously. You have to read it, understand it, and be aware of what you’re signing before you sign your name on that dotted line. You can’t go back because you felt like he bullied you, you just didn’t understand, or your circumstances changed. You have to be proactive. So, seek advice from an attorney. Negotiate an awesome result. And sign with peace of mind, knowing that you’ll get a great fresh new start.

How does a separation agreement work?

Separation Agreements take the place of the judge’s final order. Instead of going to court and taking the judge’s order as the final say in your case, a separation agreement is the document that divides everything from your marriage.
Instead of a contested divorce (one where an agreement isn’t reached), a separation agreement turns your divorce into an uncontested divorce, which just means that all the underlying issues were resolved between the parties. It means that, instead of having a final hearing, you can move forward with an uncontested divorce—a much easier procedure, by far. Some courts require an in person hearing, which usually lasts 4-5 minutes, and just consists of the moving party and his/her corroborating witness answering a couple easy questions to establish jurisdiction and grounds. Other courts allow divorce by affidavit, which just means that you and your corroborating witness submit your signed testimony to the court (via affidavits, hence the name). There’s no hearing, and the only catch is that your divorce will be granted as the judge gets to it, provided that all the information regarding jurisdiction and grounds is correct. Either way, it’s pretty safe to say that it’s super easy.
Most of the time, included with your final divorce decree, is a request that the separation agreement be entered as an order of the court, which means that your separation agreement takes on the same importance as if it had been issued as an order by the judge. This is called “incorporation,” and it’s a pretty important step, because it means that your agreement will be formally recognized and enforced by the court.

What goes in a separation agreement?

Everything! Separation agreements will help you divide the assets and liabilities in your marriage, including the biggies, like retirement accounts and real estate, and the little things, like personal property. It can also provide you with a blueprint for how certain things, when they come up, will be handled, like custody and visitation, and who will carry car insurance for the child when she comes of age. It’s nice to have the flexibility to be able to map out the here and now, and also to do your best to plan for the future, when other issues present themselves.
You’re free to be as creative as you want in your separation agreement, provided, of course, that you can get your husband to sign. You can figure out, in tons of detail, exactly how you want to divide every single item of personal property, or you can describe exactly how your aging dog should be cared for so that he always receives his medication on time and gets to spend as much time as possible with both you and your soon to be ex husband.
You can divide everything—credit card debt, investments, pets, cars, boats, planes (you know, because who doesn’t have a plane?), furniture, bank accounts, stocks, bonds, insurance policies, business interests, and pretty much everything else that you own, or otherwise earned, acquired, or purchased during the marriage.
Separation agreements give you the flexibility to handle your divorce on your terms. It gives you the ability to prioritize the things that are important to you, show your soon to be ex husband how understanding you can be of the things that are important to him, and work together to reach a common goal—starting over fresh.
Just because your divorce starts out looking like it’s going to be a big fight doesn’t mean that it has to end that way. Just because your marriage is ending doesn’t mean that there aren’t some big things on which you can still agree—like, for example, that you’d like to start fresh WITHOUT winding up in debt. I don’t know about you, but it’s funny how well I can work with someone when I know my financial bottom line is at stake!
Keep your eye on the prize (that brand new fresh start you’ve been envisioning for yourself), and start to think about what you’d like to get out of your divorce. Imagine all sorts of different and creative ways you can divide things, so that your priorities are taken into account. Likewise, consider your husband’s perspective. I know, I know, he wouldn’t consider you first—but that’s part of the reason why you should. By showing him that you’re willing to consider another perspective, you help encourage him to accept and contribute to drafting a separation agreement that will allow you to move on.
For more information, or for help figuring out how to draft an awesome separation agreement, give our office a call at (757) 425-5200.

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