When it comes to your divorce, there are mainly two options: you can litigate your issues of property division, child custody and spousal/child support—which means you fight it out in court—or you can work towards resolving these issues by drafting a separation agreement through negotiation, mediation or collaboration.
A separation agreement is a legally binding contract between you and your soon-to-be ex-spouse that divides everything from your marriage. It can be as detailed as you need it to be. More detail means less room for confusion and decreased possibility litigation in the future.
Separation agreements frequently include provisions addressing the big things: real property, cars, boats, houses, bank accounts, etc. They can also include provisions addressing spousal support or alimony to be paid, child custody and visitation schedules, and child support. Every separation agreement will look different depending on the circumstances of the case.
Nevertheless, there are a few good tips that everyone should follow when drafting their separation agreement.
Draft Plain And Simple Terms
This may seem like a no-brainer, but many divorcing couples worry about including formal legal terms in their separation agreement. This is entirely unnecessary. If you and your spouse draft an agreement that divides all your assets and liabilities and then you both sign it – the agreement is legally binding. The important thing is that you, your spouse and anyone who reads the agreement can understand what it says.
Similarly, it is important to draft an agreement that makes logical sense. You want to ensure that each provision is clear and consistent and unambiguous. Vague or contrary agreement provisions can cause confusion and may lead to litigation – precisely what you are trying to avoid by drafting the agreement.
If you are unsure whether your agreement is ambiguous, try re-writing your sentences a few times and reading them over; consider having a third party review the writing to ensure it makes sense and does not lend itself to multiple interpretations.
In addition, it is always a good idea to read through the agreement with your soon-to-be ex-spouse prior to signing it so that you both understand what the agreement says.
Draft an Evolving Agreement
Matters of property division are straightforward and your agreement should clearly set forth who gets what. Once you and your spouse sign the agreement, it is binding and cannot be changed later.
But if you have children, your agreement should be written to consider their growth and changing needs. Custody and visitation schedules will likely change as your children grow up. is the schedule that seemed appropriate for your two-year-old will likely not apply when he reaches seven. Your agreement should account for this.
In addition, it is important to remember that custody and visitation schedules of minor children can be modified by the court upon a showing of a material change in circumstances. This means that until your kids reach the age of 18, custody and visitation schedules are not necessarily set in stone.
Include Safety-Net Provisions
When drafting a separation agreement, there may be property that is either not disclosed or forgotten. After the agreement is signed and ratified by the court, it may be difficult (or impossible) to modify the agreement. For this reason, it is important to have a sentence or two that describes what to do with omitted property. Maybe you want to split any forgotten assets 50/50, or maybe you want the property divided according to a scheme used elsewhere in the agreement. No matter what you and your spouse prefer, make sure to include in your agreement provisions addressing omitted property in order to avoid future litigation.
While it is definitely possible to draft your own settlement agreement, it is always recommended to have a qualified family law attorney review your agreement before you sign it. Your attorney can make sure all your bases are covered and can seek to protect you from any liabilities that may stem from a poorly-drafted agreement.
The family law attorneys at the DiPietro Family Law Group are experienced with all family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC. Contact us today at (888) 530-4374.