Dangers of DIY Separation Agreements: Why You Shouldn’t Draft Your Own Separation Agreement

You can easily find online tools to aid in the self-preparation of many legal documents, including separation agreements. However, as convenient as they may seem, these ready-made forms can be filled with potential pitfalls that can do more harm than good. Fill-in-the-blank documents are “one-size-fits-all” and are rarely sufficient to address all the necessary considerations required by our courts. Those who use DIY agreements often do so because there is a common misconception that involving attorneys in a divorce only complicates and delays matters while costing a fortune. Regardless of your situation, using a DIY agreement to save time or money should never be used as a substitute for obtaining independent and sound legal advice. Having a knowledgeable attorney help you through your divorce can be an extremely valuable resource that you should take.

A separation agreement, also known as a property settlement agreement, is a legally binding written document that resolves issues relating to separation, such as division of property, child custody, child support, and spousal support. It is extremely important to ensure that the separation agreement you enter is a legally binding document that clearly states what you want. After all, these are critical decisions that affect your future as well as your children’s. While decisions can be mutually agreed to, ensuring those agreements are properly stated in a separation agreement can be complicated. Separation agreements have many pitfalls, too many to list here, however, below are some of the most common dangers DIY agreements pose.

1. Not having an understanding of North Carolina laws, or what the agreement does, or does not specify. To enforce an agreement, should one spouse not hold up their end of the bargain, it is necessary that it be a legally enforceable contract. There are many more elements to a separation agreement than simply stating who gets what and signing it. Including the appropriate waivers and having the agreement signed appropriately by both spouses, at the right time, is necessary to ensure you can enforce your agreement in court. Failure to properly execute a separation agreement pursuant to North Carolina laws will put you back at square one, with essentially no enforceable agreement. Sure, you and your spouse may be amicable, an informal agreement may be fine for a period of time, however, things do change. Job changes, debt increases, inheritances, or even market fluctuations cause spouses to rethink their prior informal agreement and seek more of the assets than initially agreed upon.
2. In some circumstances, an agreement may be prepared that doesn’t say enough and is too vague or ambiguous. Without sufficient directives an agreement won’t provide sufficient legal protections or details to safeguard against future potential problems. This is often the case in child custody cases where parties assume because they are amicable they don’t need a set holiday schedule. They often leave it up to their “mutual agreement” for each independent holiday failing to realize that one spouse may not be so happy or agreeable in the future and then they have no set schedule to fall back on.
3. Another issue with do-it-yourself agreements is that people fail to realize that they don’t really understand all the terms in the “form agreement”. Without consulting with an attorney, you may fail to understand exactly on what you are agreeing, or in some instances, to what you have waived your rights. Some individuals often feel the need to add language, or terms, that aren’t legally enforceable. These situations can lead to major misunderstandings and long-term consequences. Entering into an agreement without having a full understanding of its effects can be contrary to your intentions, such as having the agreement incorporated into a divorce decree. Frequently individuals have no idea what the legal ramifications of incorporating an agreement are. In North Carolina, incorporating an agreement into a court order means you transform that agreement from a contract into a court order, meaning the court has (among other things) the power to modify it and enforce it with contempt powers. Depending on the terms in your agreement, this may or may not be to your benefit.

While there is a cost associated with having an attorney assist you with your separation agreement, the cost of not having knowledgeable legal counsel can be much more. Entering into any agreement, especially a separation agreement without a full understanding of your rights and obligations can lead to major problems. Having to fix issues arising from a DIY agreement can quickly add up and cost you more time and money. Having an experienced attorney can help you not only come to an expedient and effective solution but also memorialize it in a legally binding agreement.

Before you sign a separation agreement you owe it to yourself to speak with a family law attorney. At Hopper Cummings, our attorneys have over 30 years of experience in helping our clients efficiently resolve their issues in all areas of family law, including divorce. For a confidential consultation with one of our attorneys, call us today at 919-533-4115 or complete our online form.