Not happy, but not ready for a divorce: The Marital Agreement

You’re unhappy, but maybe you’re not ready to move forward with a divorce just yet. Things have been rough, but you’re still holding out hope that something might change and you’ll be able to make it work. Whether for your own sake or for the sake of your children, there’s something just so permanent about taking those first tentative steps towards divorce, and you’re not ready for that yet.
But that doesn’t mean, though, that you’re okay with how things are. That doesn’t mean that you’re comfortable living with so much left unresolved. You want to work on your marriage, but you want to do it from a place that feels a little more secure than where you are now. In order to be able to focus on making the decisions you need to make to fix your marriage, you need to feel like you’re in a better, stronger, less vulnerable place. You need to know, in short, how everything would be divided if it came down to divorce.
What you need, my friend, is a marital agreement.

What is a marital agreement?

A marital agreement is a lot like a separation agreement. It’s a legal contract, and it divides all the assets and liabilities of the marriage in the event of a separation and subsequent divorce. In most cases, it details what you want to have happen to save the marriage, too. If, for example, you want to make sure your husband will go to marriage counseling with you—you go ahead and write that in to your agreement. Want to schedule date nights once a week? Your agreement can include that, too.
The basic premise is that you can put in writing the things that you need for your marriage to succeed, and also outline what will happen if it doesn’t—so that both of you can put those things out of your mind and focus on the steps you need to take to make sure that you can save your marriage. That way, no one is obsessing over where they’ll live, what spousal support will look like, or whether there will be a knock down drag out fight for custody. The two of you can come together, from a place of understanding, and negotiate for yourselves the way things will look if you aren’t able to save your marriage.
It’s a great way to protect yourself and, in a lot of cases, relieve a lot of the tension surrounding the reconciliation, because you’re able to feel secure in the knowledge of what will happen if things start to unravel.
In my experience, the most difficult parts of the divorce experience are often worrying about the unknowns. When you’re worried about where you’ll go, how you’ll pay for your life, and whether your kids will be taken care of, it’s hard to focus on bigger picture things. (It’s kind of like Maslow’s Hierarchy, if you took a high school psych class!) Meet the bigger, more fundamental needs, and then you can work on dealing with your relationship troubles with maturity and perspective.

How does it work if you want to draft a marital agreement?

Again, it’s a lot like a separation agreement. You hire an attorney to draft and negotiate the agreement on your behalf. It’s a collaborative process between you and your attorney; we customize each agreement to each woman and her unique circumstances, so that she feels that her specific needs and concerns are addressed. Then, we’ll send the agreement (or you’ll deliver your agreement) to your husband (or his attorney, if he’s represented by counsel), and he’ll negotiate back and forth with us until we have an agreement that you’re both comfortable signing.
Then, like a separation agreement, it’s a legal contract. It’s binding, and it’ll become your separation agreement if you can’t work things out like you planned. That way, you both go into the process knowing what to expect.
An added bonus? A husband who wants to make things work will come at this differently than one who has nothing to lose because it’s over anyway. You’re in a different kind of bargaining position when you’re trying to save your marriage, so you’ll probably fight less as you try to negotiate your agreement than you otherwise would. Will you get a better result? Maybe that, too! But these are often less expensive than separation agreements, because the parties are more focused on the reconciliation than they are nit picking over the specific terms. So, stay focused, protect the things that are driving you to read this article (you wouldn’t be here if you didn’t have some concerns!), and negotiate a solid agreement.

What if he wants to change our  marital agreement later?

Once signed, it’s very difficult to contest the marital agreement later. And, really, by “very difficult,” I mean almost impossible.
Contracts are almost always honored by the court. Chances that your husband could change his mind later on down the road are slim and none.
If you both wanted to make a change to your agreement, though, you could negotiate an addendum. An addendum is a legal document that modifies a previously existing contract. The catch? You’ll both need to sign an agree in order to execute an addendum to your earlier agreement. There’s nothing he can do on his own to change the terms of your agreement. You’ll have to agree.
Take negotiations seriously, because this works in reverse, too. If you want to make a change, you won’t be able to do so without him agreeing to negotiate an addendum. Best to get it right the first time.

How much does it cost to negotiate a marital agreement?

We take retainers for marital agreements a lot like separation agreement cases, so retainers usually begin around $2,500. That’s not a flat fee; it’s a retainer, so it’s an amount of money put into an escrow account with your name on it. We bill from it, at our hourly rate, as work is done. Any money that is left over is refundable to you. So, if it only costs $1000 to get your agreement drafted and signed (and that’s possible!), you’ll get $1,500 back. We can’t keep anything we haven’t earned.
It’s possible, though, that it could also cost more than your retainer. If that were the case, we’d just ask that you replenish your account after it falls below a certain level (usually like $750).
In my experience, though, it costs less to negotiate a marital agreement than a separation agreement, because the parties have more to lose in the sense that they’re both focused on doing whatever it’ll take to save the marriage.
That’s not a guarantee, just something I’ve noticed.
Marital agreements can be a great way to protect yourself and try to save your marriage at the same time. If you’re hoping that your marriage can be saved, but you want to iron out some details first, maybe a marital agreement is for you. For more information, or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.
Good for you for trying to save your marriage! You should know that, even though we handle divorce on a daily basis, we’ll never push you in that direction. In fact, we’re here to help you do whatever it takes to get yourself to the happily ever after you’ve been envisioning. Whether you’re looking for a separation agreement, a marital agreement, or just some information before you decide to take no specific legal steps, we’re here to help. Ask questions. Get answers. It can’t hurt. And you’re definitely in the right place.

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