What’s a separation agreement? (And why do I want one?)

When most attorneys talk about divorce, they give the impression that there are all sorts of different “types” of divorce—negotiation, collaboration, mediation, litigation—but the reality is that there are really only three real choices. You either (1) negotiate your divorce by signing a separation agreement and decide for yourself how your things will be divided, (2) litigate your divorce and let the judge decide, or (3) you agree on what you can and let the judge decide the rest.

What lawyers refer to as different “types” of divorce are really just different methods of achieving the same result. Either you litigate (which means you fight it out in court), or you work towards a separation agreement—which can be achieved through negotiation, collaboration, or mediation. It’s really mostly just a question of what you want, and what you’re prepared to do to get it.

So, if you’re headed towards divorce, it’s time to start making decisions about how you want to move forward. In most cases, I think, it helps to begin thinking about a goal for where you want to end up, and work backwards from there. Most people identify some version of the same goal, which has something to do with saving money, getting the things that are most important to them in the divorce, and having enough left over to re-build their lives after divorce. Does that sound like you?

In a litigated divorce, a judge makes the decision about how everything (at least, everything that you haven’t already agreed to divide) will be divided. His (or her) decision is memorialized in a court order, and you can be punished for violating it. You don’t have any say over the outcome and, once the judge orders it, it’s law.

In a negotiated divorce, regardless of whether you choose to negotiate, mediate, collaborate, or do it yourself, you and your husband reach an agreement about how everything will be divided. Together, you sign an agreement called a separation agreement (or a stipulation agreement, or a property settlement agreement, or something similar). Today, we’re talking about what exactly a separation agreement is, and why on earth you’d want one. First, we’ll begin with a discussion of the differences between a litigated divorce and one that is negotiated (I’m using negotiation as a general header for any divorce that is achieved through a separation agreement).

Litigation

Litigation is usually considered to be a last ditch effort, after all other opportunities to negotiate any kind of settlement have failed. Why? Well, probably mostly because litigation is both time consuming and expensive. It’s not like you can just say, “Whatever, take it to trial,” on day one and never have to make any attempt to settle. There are all sorts of procedural guards in place, enforced by the courts, to help make sure that everyone who reaches the trial state of the case has already attempted to settle—in many cases, the court wants to see that there have been multiple attempts to reach a settlement. That takes time, and costs money. Because, as you can imagine, your attorney has to prepare for each of these separate attempts—whether they’re hearings or settlement conferences (with or without a judge)—and prepare a number of related documents to support your position.

By itself, without all those other procedural requirements, trial is expensive. Your attorney will have to prepare witnesses and exhibits, write opening and closing arguments, prepare for questioning and cross examination, and know your case inside and out. Your attorney has to know what property you have and propose a way to accomplish its division. Your attorney has to make arguments on your behalf relating to custody, equitable distribution, spousal support, and child support. It’s very complex.

Not only that, but, as far as most people are concerned, trial isn’t really a desirable outcome, because then the judge gets to divide everything. Every judge is different, so it’s hard to tell, ahead of time, exactly how the judge will treat your things. Most judges view a divorce as a business transaction, so they divide everything as quickly and easily as possible, without too much thought for who gets what. (In an agreement, on the other hand, though you’re probably still looking at a relatively equal division of the property that is marital, you have a little more freedom to choose which parts are more important to you.) In fact, I had a case awhile back where a couple was fighting over a car, and the judge told them that, if they couldn’t agree, he would sell the car at auction and split the proceeds. He knew full well, he said, that they wouldn’t get the most possible for the car, but he didn’t know of another way to do things better or more fairly or without prejudice to either party. So, anyway, long story short—you often don’t end up with the distribution of property that you’d prefer, and there’s usually not much feeling by the parties that the judge maximized the value of the marital assets (like in the case of the car, the parties would have lost money had the judge ordered the auction). Either way, it’s not ideal.

Of course, there are situations where it’s impossible to do anything other than go to court, usually because of an incredibly difficult husband. At the end of the day, if he absolutely, positively refuses to sign any kind of agreement, you’ll have very few options other than going to court. It’s a good idea, if you’re afraid you might fall in this category, to talk to an attorney as soon as possible, so that you can begin to make a plan.

Negotiation

When you negotiate, on the other hand, there is a lot more flexibility. There are far fewer procedural requirements, and many different options from which you can choose, especially as far as it relates to how exactly you want to get your writing in place. We’ve already said, of course, that you have the option of negotiation (with or without an attorney’s help), collaboration (a legal process where you hire collaboratively trained attorneys and work with a team of professionals to get an agreement in place), and even mediation (where you work with a shared mediator, who is usually not an attorney, to reach an agreement)—the methods are different, but the desired end result (the separation agreement) is the same.

Flexibility in terms of the process is nice, because it lets you choose something that suits your needs best. Whether you want to work with a mediator, a collaboratively trained attorney, a regular attorney, or do it on your own, the path you choose can look pretty different from the next person’s. Even two people who choose to negotiate their divorce with the help of an attorney can have very different experiences. Of course, a lot depends on the choices you make about whether to hire an attorney or a mediator (and, if so, whom), and, naturally, the level of difficulty presented by your husband is also a factor that can change the tenor of a negotiation (just like it can in a litigated divorce), but there’s also a lot of flexibility involved in the choices that you can make.

Separation agreements aren’t just flexible procedurally, though; they’re also flexible in terms of how you decide you want everything divided. We often tell our clients that a separation agreement is only limited by the creativity of the people involved in drafting it. There are very few rules about these types of agreements (except, of course, that you can’t agree to do something that illegal or anything like that), so you can come up with a completely custom tailored arrangement that takes your priorities, your husband’s priorities, and, obviously, the priorities of your children into account. As you can imagine, most people prefer the sense that they have some control over the proceedings to letting the judge handle things however he wants.

So, what exactly is a separation agreement?

A separation agreement is a legal contract that formally divides everything from your marriage. When I say everything, I mean everything—and in as much detail as you require. Separation agreements always divide the big stuff: the real property, the cars, the retirement accounts, and so on. They also handle custody, visitation, and child and spousal support.

Every couple’s separation agreement is a little bit different. Some agreements include elaborate custody and visitation agreements to help the parties share responsibility of the family’s pets. Others include pages and pages, in painstaking detail, dividing every item of personal property—all the way down to the last dish towel.

It’s a contract, though, so you should take it seriously. Make sure you don’t sign it until you’ve read it and understand it. If your husband has presented you with one, it’s a good idea to take it to a lawyer to have reviewed before you sign. Once it’s signed, it’s pretty much set in stone—just like if the judge had ordered it.

Why do I want one, and what does it mean for my divorce?

Even though you definitely have to be careful where separation agreements are concerned (because, like we said, they’re binding legal contracts once they’re signed), in most cases, separation agreements are ideal. We’ve already discussed how much more flexible separation agreements are than litigated divorces, both in terms of your options with respect to the procedure and in how you decide to divide everything between you and your husband.

Separation agreements give you a lot more control over how your divorce goes, so a lot of people opt to take this path just because of the additional freedom it gives them. When it comes to something as difficult as divorce, having some control over the outcome is reassuring.

Divorces can be divided up into a couple of different types, but basically it amounts to whether it is contested or uncontested, and based on fault or no fault.

Contested and uncontested refer to whether the outcome has been negotiated. In a contested divorce, agreement has not been reached. An uncontested divorce, on the other hand, means that all the outstanding issues have been resolved.

Fault and no fault refer to the grounds on which the divorce has been filed. In a fault based divorce, the parties allege that fault is the reason for the breakdown of their marriage, citing either adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment or felony conviction. A fault based divorce is always contested, because it requires the person alleging fault to prove to the court that the grounds exist. (You can’t just sign a separation agreement admitting you committed adultery, or any other fault-based ground. It’s not enough. You have to go to court to prove it.)

A no fault divorce doesn’t necessarily mean that no fault grounds exist, but it does mean that neither party plans to move forward with the divorce using fault based grounds. Instead, the divorce is granted based on the parties having lived separate and apart for the statutory period (one year, or six months if (1) there are no minor children, and (2) there is a signed separation agreement). A no fault divorce can, unlike a fault based divorce, be either contested OR uncontested. (After all, just because you don’t have, or choose not to use, fault based grounds doesn’t necessarily mean that you can negotiate a separation agreement!) You can go to court and litigate your contested no fault divorce, or, alternatively, you can negotiate a signed separation agreement and pursue an uncontested no fault divorce.

Uncontested No Fault Divorce

Compared with any type of contested case, whether fault or no fault, an uncontested divorce is much, much easier. Instead of having to go to court to litigate, in many uncontested cases, you don’t have to go to court at all. Some courts require an uncontested divorce hearing, where you answer a few quick questions, just to make sure that your grounds and everything are up to snuff. In many courts now, though, all you do is prepare your documents and submit them to court, and you can get what is called a divorce by affidavit.

In a lot of ways, negotiating a separation agreement gives you freedom. You can choose how you want to do it, and then you can exercise a lot of control over exactly what goes into it. It’s tons better than just leaving it all in the hands of a judge, don’t you think?
For more information about separation agreements, to talk about what provisions might take care of the concerns that are keeping you lying awake at night, or to schedule an appointment, give our office a call at (757) 425-5200.