Hey all. Jammie Wacenske, the family law attorney, here with a Public Service Announcement:
DON’T SIGN THAT!
Here lately, I have seen TOO MANY separation agreements cross my desk where one side has an attorney and the other doesn’t. Then, the one without an attorney calls or seeks legal advice AFTER the document has been signed.
Here’s how I’ve seen this play out: You’re married. Things don’t go the way you expect them to and now suddenly you are facing a divorce. Your spouse, whom you love and trust and still continue to do so (maybe despite the fact you are getting divorced), presents to you a separation agreement. You ask them what it is. They casually tell you “Oh it just protects my business” or “Oh this document just establishes our date of separation (just ignore the fact it’s 26 pages long)” or “I just wanted to put something in writing, it’s nothing serious, you can just sign it.” Then you sign the document. Later, maybe after your spouse has moved out, you realize, “Oh man! I can’t pay these bills alone!” Or, “I need to get my name off the house so I can buy my own house, I wonder how I do that?”
So, you contact an attorney to find out how to go about getting finances sorted out. To your surprise, the attorney says, “unfortunately, you can’t do that based on the terms of your separation agreement.” You, quite naturally, respond “WHAT?!? But I didn’t know what I was signing, does that count for anything?” Generally… no. It’s often up to you if you decide not to read the agreement or not to get your own legal advice. Typically, these agreements will have specific language to that effect (i.e. That you have “read thoroughly and waived separate legal counsel,” etc.). Unfortunately, unless you were forced or legally lacked the ability to understand what you were doing at the time of signing (for example, forced at gunpoint or were suffering from dementia), the courts are most likely going to follow the separation agreement rather than any complaint that you file with the family court. Feeling pressured or stressed is not enough to nullify the agreement.
How do you prevent this situation from happening?
DO NOT SIGN THE DOCUMENT until you have had an attorney review the document and explain to you what this document says!
Valuable rights that could be waived include:
- Post-Separation Support
- Equitable Distribution
- Which can include whether or not you have any interest in retirement accounts, division of assets, and debts.
- Unfavorable child custody terms
- Unfavorable child support terms
- If there is an affair, third party waivers may be necessary for you, or they could be included to protect them other party!
- What’s a third-party waiver? It is a provision in the agreement that dictates whether or not you have the right to sue for Alienation of Affection and Criminal Conversation if your spouse had an affair OR whether or not you can protect your paramour from being sued if you had an affair.
ATTORNEYS HAVE A DUTY TO ACT IN THEIR CLIENT’S BEST INTERESTS! If your spouse, with whom you are seeking a divorce, has hired an attorney to draft and provide to you a separation agreement, then that attorney is required to act in their clients’ best interest – not yours. Even if it’s a very collaborative process, I can almost guarantee you that there will be some terms contained in there that are unfavorable to you!
Please, for the love of all of your basic rights afforded to you by nature of your marriage, PLEASE hire an attorney, even if it is on a limited basis, to go over the document that was presented to you BEFORE you sign.