Often when someone comes in to discuss a divorce, he or she will want to say that the divorce is “uncontested”. It is no secret that an uncontested divorce costs a great deal less than a contested divorce.
Unfortunately, to have an “uncontested” divorce, you and your spouse must be in agreement as to all the divorce issues: fault grounds, spousal support, equitable distribution and the child issues of custody, visitation and child support. If you and your spouse disagree about any one of these items, you do not have an uncontested divorce… yet.
To facilitate an uncontested divorce, where you and your spouse can come to an agreement, I usually recommend that you and your spouse negotiate and sign a separation agreement, specifically one drafted by an attorney. Why an attorney? In truth, if you and your spouse were to agree upon terms, written on a napkin, and sign the napkin, that would be a legally-binding document. It may be hard to enforce in Court, though.
Additionally, what you may be agreeing to, and signing may be two different things. For example, you or your spouse may agree that “wife can have the house”. In husband’s mind, this may mean that wife pays the mortgage; in wife’s mind it may mean she “gets” the house after the husband pays the mortgage. Without further clarification, “wife can have the house” does not say who will pay the mortgage, at all, so you are left without an agreement as to that point. Another way this happens is when you agree to a legal term, and you don’t know what it means. This most often happens when a couple agrees to “joint legal custody”. What if “joint legal custody” means something other than what you thought you and the other parent were agreeing to?
Finally, an attorney can put into an agreement protections that might not have been there otherwise. For example, how do you and your spouse go about modifying your agreement should circumstances change? There’s a provision for that. What if one of you drafted it and the other one felt pressured to sign it? There’s a provision for that. What if it was written in Virginia but you both live in different states now? There’s a provision for that. I am not suggesting that attorneys are not human, but many of the provisions you and your spouse may leave out come standard in attorney-drafted documents.
In sum, do not allow your divorce to become a Pinterest fail by drafting your own separation agreement, on a napkin or otherwise. Hire a professional so that you know you are protected and that what you agreed to will become the basis for your divorce.