I met with a woman the other day who had a separation agreement – prepared by her mediator – that she wanted me to review. She had gone to mediation with her husband, and then they had modified the agreement. She wanted me to tell her whether it was a fair offer for her.
It had some promising items. Her husband was agreeing to pay off her student loan debt (incurred before the marriage), pay off her car loan, and pay a pretty significant sum in spousal support.
“Should I sign?” she asked.
“I don’t know,” I told her, truthfully.
The reality is… Though we’re pretty good (I mean, obviously, we’ve been representing women exclusively in divorce and custody cases for nearly thirty years now), we’re not omniscient. We don’t just know what your assets and liabilities are.
Though I saw some good things in the agreement (some things that, arguably, a court would likely not award), it made me wonder… What ELSE is there?
She didn’t know. She couldn’t tell me. She didn’t know what retirement accounts there were, or how much was in them. There was a question of some inheritance or other, and she didn’t know specifics.
I can’t give advice blindly. I did tell her, of course, the parts that were good, and I pointed out the places where my knowledge (and hers) was limited. I told her about the risks associated with signing an agreement without full knowledge of the assets and liabilities, and the portion that would be considered marital.
Is it a good agreement? I need more information. I did also let her know exactly what I was missing, and what more information I’d need to advise her fully. It’s easy to make a list of all the things we don’t know; it does sometimes happen that we have to make decisions based on somewhat incomplete information. Still, in this case, there were SO MANY unanswered questions, I felt I couldn’t advise her to sign or not sign the agreement, only to go back and get more information.
It’s a tricky place to be. On the one hand, if she doesn’t sign and then requests more information (or files for divorce in order to conduct discovery and get the information), he could rescind his deal. If it was a good one, and then she can’t get him to offer it again, there’s nothing that the court can do to make him.
On the other hand, if she agrees blindly, she could be giving up more than she’s getting. It’s just…too risky! Once you sign an agreement, there’s no taking it back – so I hate to advise giving something potentially big up, just because an agreement looks pretty good on the surface. It makes me wonder, even more strongly than I might otherwise, what he’s hiding, or trying to prevent her from finding out about.
I don’t know, I’m risk averse. I like to have as much information as possible and, even though there’s certainly some risk associated with walking away from his offer and doing whatever you need to do to get the information to evaluate your situation, I would still advocate doing that.
Signing a separation agreement is a big step. It’s important, and you should take it seriously. There’s no un-signing an agreement because you didn’t know or didn’t understand. Now is the time – the only time, you understand – to gather information, to ask questions, and to think critically about whether or not an offer is one you’ll accept. You simply cannot do that without information at your disposal.
I wish I were omniscient. I wish I did just KNOW whether this was a good agreement – but I don’t. And, in this case, I couldn’t recommend that she sign it. I had to send her back to the drawing board to gather more information.
Not only that, but the agreement was insufficient. You always have to be careful when you work with a mediator or any other non-attorney (even a mediator who is also an attorney, because if you use him/her as a mediator, he/she isn’t acting in his/her capacity as an attorney). In this case, that was especially true – the agreement was a mere 3 pages long.
It didn’t have anything in it regarding taxes, bankruptcy, omitted property, reconciliation, what happens if one contests the agreement later, or much of anything else. The paragraph regarding selling the marital residence was, like, two sentences long – it didn’t discuss how repairs would be made pending the sale, with whom the listing would be made, when the house should be listed, who could live there while the sale was pending, or how mortgage, tax and insurance would be covered in the meantime. It was blatantly insufficient.
The thing about an attorney is… They protect you from problems in the here and now, by trying to resolve your issue as quickly and efficiently as possible. They also try to protect you from future problems – so that you don’t end up spending time and money in court later, either. We see that happen all the time; when an agreement is incomplete or ambiguous, the parties sometimes spend tons of money fighting over what it means later on. That’s not ideal at all, obviously!
You should make sure your agreement will withstand some scrutiny. If you work with a mediator, you should probably also work with an attorney. At least have an attorney review your agreement so that she can help you find any potential issues. It’s better to know now than it is to have a very expensive problem later on down the line!
I wish it were easy, but it’s often not. The question of whether to sign an agreement is a difficult one, and it’s one that you’ll need a lot of information on in order to make a good decision.
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