Do I Have to Have a Lawyer For My Separation Agreement?
Technically, no you don’t need a lawyer to create a separation agreement. However, I think most attorneys would very highly recommend you do seek the advice of legal counsel before signing any type of separation agreement. Here’s a list of reasons why it’s a good idea to have an attorney do your separation agreement:
- This is a big deal! A separation agreement is not a small thing that can be taken lightly. Your final divorce does not change your separation agreement. Whatever you write out in your separation agreement has the potential to last forever. Many people think the separation agreement is the small step before the divorce. It’s actually the opposite, the separation agreement is the thing that you should be spending most of your time and money on, and the absolute divorce should be quick, simple and cheap.
- Separation Agreements are very hard to overturn. Once a separation agreement has been properly executed, in other words signed in front of a notary, it can be very difficult to overturn or amend. If later you are unhappy with what you agreed to in that separation agreement or realized you didn’t know what you were legally entitled to, it’s probably going to be too late to do anything.
- They are expensive to overturn or modify: It will probably cost you at least twice as much (though probably more) to overturn a signed separation agreement. You are looking at court battles and multiple filings to fix something you already agreed to. It’s an uphill battle, that gets very expensive to fight and in the end, after spending all of that money, you may not win. Then you’ve spent tens of thousands of dollars to be in the same place you were when you started.
- A lawyer can write an enforceable separation agreement. Too often I see people come in with a separation agreement that they put together with their spouse and signed in front of a notary, but the language in their agreement isn’t enforceable in a court of law. This can be very important if any alimony or property division claims are included in your separation agreement, because once you have received a final divorce judgment, you can’t file for alimony or equitable distribution (property division) with the courts. You are out of options when you thought you had everything covered.
- You don’t know your rights. As harsh as this sounds, too many people sign something because they didn’t know they had a choice or that they had a right to certain pieces of property or to alimony. It is important to know your legal rights because what could just be $500 a month now turns into $30,000 in five years. If you agree to pay a certain amount in alimony that you are not legally responsible for paying or you waive alimony that you could receive, there can be severe financial consequences. I see this even more for property where people don’t realize that just because one party’s name is on the deed or on the car, it doesn’t mean that that person gets to keep the house/car. People are forfeiting tens of thousands if not hundreds thousands away in property without even realizing it. This has a significant impact on your future.
- His/her attorney is not your attorney. When attending social events and people find out that I’m a “divorce lawyer” their divorce or their friend’s divorce or their parents divorce inevitably comes up. During the discussion I often hear, “Oh well we got an attorney to draft up a separation agreement for both of us, we really wanted to keep lawyers out of it as much as possible.” My next question is always “Was that your lawyer or his/her lawyer?” Inevitably the person always says “well it was his/her lawyer but I helped pay for it and we already knew what we wanted so they just put it into an agreement.”I’m not saying that one attorney cannot draft an agreement that both of you have agreed on, it saves you time and money to come to an agreement on your own without lawyers. However, the other party’s lawyer is NOT your lawyer. In North Carolina, attorneys cannot represent both parties in an adversarial situation. A divorce is an adversarial situation.
If both spouses have come to an agreement, I can just draft up the contract but I still only represent one party. While I do try to adhere to the wishes of my client in these situations, my client will have the benefit of being informed about what their rights are, exactly what this agreement is, and how the language in this agreement can affect them. In essence, they have the ability to make an informed choice. The other spouse may not unless they also have an attorney. At the very least, even if another attorney drafts up a separation agreement for you and your spouse, you need to have an attorney at least review the agreement to make sure there are no hidden dangers that could affect you. It’s worth the money to have an attorney at least review your agreement before you sign anything.
If you have any further questions on separation agreements or would like to discuss your specific divorce or separation agreement, contact our office to set up a low-cost consultation. You can call us at 980-225-1832, email us at info@DuncanLarsonLaw.com, or simply fill out the contact form to the right.