Think Twice About Handling Your Separation Agreement Without An Attorney

For most uncontested divorces, the parties will need to execute a property settlement agreement, commonly known as a "PSA," settlement agreement, or simply a separation agreement. With the growing availability on the internet of forms and samples for such documents, some people feel confident in drafting an agreement without the assistance of an attorney. These agreements may turn out to be valid and work for some people, but may result in financial disaster for others.

Language in a separation agreement may seem to have one meaning, but may have an entirely different legal meaning. As an example: John and Ellen sign a separation agreement stating they will "share" physical and legal custody of the child. However, Ellen keeps the children most of the time. Without knowing anything else about this agreement, Ellen may have opened the door for a smaller amount of child support from John, under the alternative "shared support" guidelines in Virginia.

Another example: John is active duty military, but the parties omit any mention of his military retirement from the agreement. John thinks that because there was a waiver of alimony or spousal support in the agreement, Ellen will not receive any of his military retired pay. Not so! Military retired pay falls under the "property distribution" rules in Virginia, separate from spousal support, and therefore needs to be addressed separately.

Another common problem arises when the parties simply have different understandings as to what their agreement actually provides. John and Ellen may have had a verbal agreement as to a certain issue, but the language in their written agreement may not actually carry out that verbal agreement-- or may actually provide for something quite different from what they intended. This could result in a tremendous disadvantage for one party, being stuck with what the parties actually agreed to in writing, not what they believed they were agreeing to in the deal.

Military divorce cases are particularly dangerous cases for parties to attempt to handle without an attorney or attorneys involved. One example: say John and Ellen include language in their separation agreement providing that Ellen will receive a portion of John's military retired pay. Unless the language is worded in a very specific way to comply with federal law and regulations, it will be rejected by the Defense Finance and Accounting Service (DFAS). In some cases, the parties will eventually spend much more in legal fees reopening their case and asking the court to enter a new order dividing retired pay, than it would have cost to hire an attorney to get the language right the first time.

Similar issues arise when dividing other forms of retirement. For example, division of an account under the Thrift Savings Plan (TSP), Federal Employees Retirement System (FERS) or Civil Service Retirement System (CSRS) will require special language in the separation agreement, and a separate court order for submission to the plan administrator.

Given the potential pitfalls of going it alone, most people would be well-served to retain the services of an attorney to handle their separation and divorce.

The legal fees involved for having an attorney handle your separation agreement may range from the low hundreds to the thousands of dollars, depending upon the complexity of your particular situation, and depending upon how many areas of disagreement you have with your spouse. The more you and your spouse can agree upon, the lower your fees will be.

However, spending the money now may save you a tremendous amount of money later. Attempting to handle the separation and divorce without an attorney may result in one party losing out on something they were counting on receiving. Likewise, parties may save thousands of dollars in unnecessary legal fees later, by hiring an attorney to properly safeguard their interests now.

This is a post by attorney James Livesay, partner and lead family law attorney at Livesay & Myers, P.C. Mr. Livesay leads a team of divorce lawyers in Fairfax, Virginia who represent clients in separation and divorce cases across Northern Virginia.