I drafted a Separation Agreement, but he won’t sign. What next?
You’ve agonized over the decision for months – sometimes, even years. After reflection and prayer and therapy and everything else you could think of to try, you’re ready to move forward with your divorce. I’ve seen it so many times! The initial consultation is often filled with tears, but, by the end, the woman walks out of our office a little taller, a little straighter, a little bit more confident.
By the end of the process? She’s transformed. But I know – I’m getting ahead of myself. You’re not there yet. For me, it’s the woman at the end of the process that makes this work that we do so incredibly fulfilling. But that’s not you yet. And that’s okay. It’s a process, this transformation, and it takes time. You have to go through all the steps to emerge on the other side, and sometimes that takes awhile. Not everyone’s path looks exactly the same.
I’m here to give you some general information (and also some specific encouragement). It very often happens that the wife takes the first step towards divorce, and it’s also very often a separation agreement that they choose as a way to dip their toes into the water. After all, it makes sense. In a perfect world, a separation agreement would be the absolute ideal way to get a divorce. You’d negotiate an agreement, divide everything up, agree on a custody and visitation arrangement that is in the best interests of the children you share in common, and then, when your one year of separation is up, you’d file for an uncontested divorce by affidavit, no one need appear, and then you’re done.
A separation agreement is usually the quickest, easiest, cheapest way to get divorced. But, of course, an agreement has to be signed – you’re not accomplishing anything just by drafting it and giving it to him. If he won’t participate in the process, and refuses to sign anything, you don’t have much choice.
He won’t sign the separation agreement I drafted. What do I do?
This happens sometimes. If he refuses to sign, you don’t have many choices. You have to file for divorce to move things forward.
Let me say, at the beginning: he can’t keep you just by refusing to look at the agreement. He can’t make you stay, or disallow the divorce. It only takes one of you, diligently moving things forward, to get a divorce. Sure, he can make it (1) take longer, (2) cost more, and (3) be more frustrating, but he can’t prevent you from getting a divorce if you want one.
What do I need to do if I want to file for divorce?
If you want to file for divorce, you have to have grounds. Your grounds must exist on the day that you file, otherwise, as far as the court is concerned, you don’t have grounds. You can’t, for example, file BEFORE your one year of separation is up if you want to move forward on no fault grounds – you’d have to wait until you’d already been separated a year.
For that reason, many people who file because their husbands won’t sign a separation agreement use fault based grounds to file. Why? Because they exist before you’ve been separated for a year.
With the fault based grounds – adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction – your grounds exist on the day the alleged act took place. Did he tell you he cheated? Well, though that may not be enough to prove it, it’s enough to FILE on adultery immediately. Did he hit you, or emotionally abuse you? Again, we need more evidence to prove it, but that comes later. We can allege it, which is enough to file and gets us into court. It starts the process.
Filing means that we can set hearings, issue subpoenas, conduct discovery, and otherwise force him to participate in the proceedings.
The downside? Well, it costs money. And it’s kind of stressful to be in court, as you can probably imagine. There are deadlines and rules – but, really, isn’t that a good thing, too? Especially for a woman who couldn’t get her husband to participate…. This way, he’ll have to!
Okay, yes, I admit: It’s not a perfect system. But, hey, I didn’t make the system! I actually have very little to do with how it is, besides advising my clients and working within it. I can tell you what to expect, and, sometimes, what I think a judge will do. You do have to keep in mind, though, that judges (you know, like all the rest of us) are very different people who (you may want to sit down, because this is shocking) feel differently about different issues. Not every judge will decide every issue the same, especially when it comes to the things that are more “loosey goosey” – like custody and visitation, and spousal support. Other things – like retirement, the house, and child support – really aren’t worth fighting over, because they’re more or less specifically defined in the statute or established by case law.
I’m filing. Does that mean I’ll have to finalize my divorce with a messy trial?
No! Keep in mind that, just because you’ve filed, that doesn’t mean the train is on the tracks and there’s no getting off until it reaches the next station. We can change tracks at any point in the process, and, yes, we can even go back to the separation agreement. In fact, that’s what often happens!
Sure, your husband is being pigheaded and difficult NOW, but once he sees how expensive court is (and realizes he can’t hold you hostage in this marriage forever), he’s more likely to participate. After all, in a separation agreement, you often spend less money and resolve things more to your equal satisfaction than a judge would.
It’s not a perfect system, but it’s our system, and it’s one we have to work within. If you have questions or don’t understand how it might apply to you, in your specific situation, I recommend a consultation. I’ve said it before, but it’s not like Pandora’s Box. Just getting information doesn’t obligate you to continue, and we’ll never force you to do something you’re not ready to do. We aren’t going to encourage you to get a divorce. I can’t actually ever think of a time I’ve counseled someone TO get divorced. They – like you – make that decision on your own, and come to me for information about how to do what they want to do, to get up to date, Virginia specific information, or to discuss options. We won’t push you.
Knowledge is power, and the more you have, the better. We can help you there. Give our office a call at 757-425-5200 to learn more and set up an appointment today.