Negotiating a separation agreement
A client of mine, who had retained me to help her draft a separation agreement, forwarded me the draft separation agreement that her husband had prepared while we were working on ours, with the caption “Things just got ugly.”
I was confused – after all, I was retained to prepare a separation agreement, much like the one that opposing counsel had just sent to my client. Why would that mean that things had gotten ugly? Over the course of the evening, she sent me 6 or more additional emails with different thoughts, getting progressively more dogmatic as the night wore on.
Why am I telling you this? To give you perspective. To help explain a common experience that I have, and to help give you information that will ground you.
It’s scary. Divorce is always scary. And seeing an official-looking document from an attorney’s office that details your worst case scenario in black and white is probably pretty horrifying. But it’s also part of the process.
What does it mean to retain an attorney for a separation agreement?
Many of our cases are separation agreements. A separation agreement is a legal contract between a husband and a wife (or two spouses) that details how all the assets and liabilities will be divided between the two of them. It handles everything – retirement accounts, real property, personal property, bank accounts, debt, spousal support, custody, visitation, child support – and divides it between you.
A separation agreement is a negotiation. You both have to agree, but that doesn’t mean that it’s easy. It’s not like –voila! – an agreement is reached and it’s all over. Sometimes, it’s quick, but, in other cases, there’s a lot of negotiation involved. It can take a while for an agreement to be reached. If you fall into the latter category, where it’s really not all that easy, you’re not alone. Even if you’re thinking, “we’ll NEVER get an agreement in my case!” that’s probably not true. Most of these cases, sooner or later, settle. And that’s a good thing.
Why do I want a separation agreement?
Separation agreements are often ideal because they cost less and take less time. You also have more control over the outcome, and can ensure that you get the portion of the marital assets that mean the most to you. There’s also room for creative solutions when it comes to separation agreements, and you can put in provisions that a court would never order.
Can I find out what he’s hiding? Can I issue subpoenas? I want to request more information.
I think what you’re talking about is discovery. That’s the legal process we use to figure out what assets and liabilities there are. We often use this in cases where our clients don’t really know what the assets are (generally speaking, when their husband managed the money).
We can only do discovery in cases where a divorce has been filed. Usually, in a separation agreement case, we won’t file until after the agreement is negotiated – since we’re using no fault grounds, we can’t file until after the one year separation period has been met. (You can’t file without grounds, you don’t have grounds until you’ve been separated for the statutory period, so we have to wait a year to file – in that time, we negotiate the agreement.)
Sometimes, we file on fault first, and then negotiate an agreement later. In those cases, we sometimes do conduct discovery. It really all depends.
Same thing goes with subpoenas – that’s a tool we use in a case that has already been filed. In a pure separation agreement case, where we were just retained for negotiation, we don’t have the ability to conduct discovery or issue subpoenas.
If you’re not at all sure what the assets are, it may be more prudent to file for divorce – rather than attempt to draft a separation agreement – so that you can use these methods.
Is it better to give him a draft agreement first – before he drafts one?
That’s tricky. I’d say yes, I’d prefer to draft first, because then we’re using my agreement, not whatever the other attorney uses. I like the language in mine best, and it’s been crafted over years to protect our clients from all sorts of situations later on down the line.
But also… it probably doesn’t matter. In many of my cases, the husband has hired an attorney first, and so he takes the first stab at the agreement. I do have a slight preference towards my own, but, all the same, it’s a negotiation process – we can get the language we want added, and make sure that the document does all the things that one drafted by our office would do.
I can also see the perspective that it’s shocking to get an agreement. The client I discussed earlier was certainly shocked. I felt bad for her because it obviously upset her a great deal, but, at the same time, there’s no real, material advantage to having the first go at getting an agreement in place. But, still, eventually, someone is going to have to send the other spouse a draft agreement. And, yeah, that first draft is probably very pro-the person who drafted it. Right? I mean, you’re not going to start with your best offer – there’d be nowhere to negotiate from! Strategically, that would be a very difficult decision.
Like I said, I get it. In my own personal life, sometimes I think I’m a professional worrier. So, if you’re worried, you’re not along. You’re also not wrong! But you’re in the right place, you’re asking the right questions, and you’re setting yourself up for a good result.
The more you know, the better! It’s cliché, but knowledge really is power! If you’re wondering about how divorce works, request a free copy of our divorce book or visit our resources page for a ton of different free reports on topics that can help you figure out how to get started.
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