So you and your spouse have reached the point of no return and have decided to separate. You believe you’ve worked out all the details of the split, so you search the Internet and find a separation agreement form to fill out as your Separation Agreement. Sounds great, right?
Maybe, but probably not. Online forms often result in numerous unintended consequences for parties that impact their lives long after the ink is dry and the notary seal is applied because:
THE FORM DOESN’T ADDRESS ALL THE ISSUES FOR YOUR SPECIFIC SITUATION.
A one-size-fits-all approach simply doesn’t work when dealing with two spouses ending a marriage. No two parties are alike, and every marriage is different. For example, some websites offer “temporary” and “permanent” separation agreements. Unfortunately, the sites don’t offer the legal advice you need to help you decide between the two, or explain the consequences if you (or your spouse) determine later on that you have the wrong type of agreement.
Additionally, the agreement you draft online may not include everything you need it to include because you and your spouse haven’t thought of everything just yet. An agreement is almost never ready for signatures after the first draft. This is one of many reasons why an online form cannot replace a consultation with an experienced family law practitioner. Meeting with an attorney allows you the opportunity to ask questions about the specifics of your separation, something you can’t do with an online form. Taking the next step and retaining an experienced divorce attorney to draft your separation agreement gives you access to legal advice and an advocate protecting your interests while your separation agreement is being drafted. This is critically important, especially in Virginia, where courts routinely decline to modify an agreement after one party figures out they made a bad deal.
ONLINE SEPARATION AGREEMENT FORMS OFFER NO PROTECTION FROM “THE DOMINANT SPOUSE”
Inexpensive online forms are often used by the spouse who wants a quick out, wants an unfair share of marital property, or wants the other party to waive their rights to something they are entitled to, such as a share of the spouse’s retirement pay, or spousal support. In these cases, one spouse attempts to exercise excessive control over the other to enter into an agreement that favors the dominant spouse, and leaves the other with less than they would receive in even the most basic divorce action. Many times, the dominant spouse exaggerates the savings the parties will realize by going the ‘cheap and quick’ route instead of each party hiring their own attorney. In the long run, however, the spouse who falls for this approach often ends up in a worse financial position, losing far more than the divorce attorney’s retainer.
THE LAWS OF YOUR STATE, AS WELL AS LOCAL COURT PRACTICES, ARE NOT ADDRESSED
Every state has its own statutes and case law precedents that govern divorce and related issues, such as child custody and visitation, child support, spousal support, and the division of assets and debts. Additionally, every court has its own specific practices.
For example, an award of spousal support is governed by statute in Virginia, and there are numerous factors a court must consider when determining who is to receive support, how much support they are to receive, and for how long. But unlike the statute that governs child support, the spousal support statute does not include numeric guidelines to determine the award. Instead, many Virginia courts consult various formulas for determining temporary support while the divorce is pending, and/or permanent spousal support. Online forms don’t take those local practices and preferences into consideration, which may result in your agreeing to something vastly different than what a court would award.
Finally, you may end up agreeing to something that’s not legally required (like paying child support beyond the child’s emancipation), or perhaps worse, agreeing to something that’s not legally enforceable.
A consultation with an experienced divorce attorney can eliminate these problems. Your divorce attorney will explain the law and what you’re entitled to during the consultation, and be able to address your specific concerns.
THE ONLINE FORM DOESN’T PROMPT YOU TO INCLUDE CONTINGENCIES AND DEADLINES.
This is especially important for the tax consequences of spousal support, capital gains, and small business ownership. Those online forms simply cannot account for all the details that are critical to a sound financial future for both parties. Parties with significant assets are especially cautioned against using online forms.
Additionally, many forms prompt parties to divide specific assets, but don’t go far enough in getting into the details of that division. For example, you and your spouse have agreed that he will keep the marital home and refinance the mortgage to remove you from liability. Your agreement, however, didn’t include a deadline by which this has to happen, or plan for the possibility that he won’t qualify for a new mortgage as the sole borrower. Will the house be sold? How will the proceeds be divided? What if he can’t refinance and decides to stay in the home and “try” to make the payments? How will that impact your credit, and your ability to purchase your new home?
Specifics are extremely important in custody and visitation provisions as well. Failing to include detail leaves you in the position of having to return to court for a judge to make decisions about your children.
In Virginia, custody, visitation, and child support are modifiable when there is a material change in circumstances. What if you don’t have a “material change,” but something about the terms of the agreement just doesn’t work?
For example, your separation agreement doesn’t specify who is responsible for the transportation of the children between the two homes, or take into consideration that school or daycare may be closed for inclement weather. What happens when your child is too sick to get out of bed for school, but the other parent wants to exercise visitation anyway? What happens when one party’s holiday visitation interferes with the other’s regular weekend visitation?
Separation Agreements drafted by attorneys are typically long, very detailed documents that take into account all the specifics addressed during the consultation and the parties’ negotiations. These agreements are often revised and fine-tuned numerous times before the parties sign before a Notary Public. Because these Separation agreements are incorporated into the final decree of divorce, and govern the parties’ financial futures, co-parenting relationship, and tax consequences for years to come, retaining an experienced attorney is a valuable investment.
Also See: Virginia State Separation Information