Doing it Yourself

Posted by: Lisa Lane McDevitt
November 19, 2009

Today I received a call which, sadly, is not unusual. The person calling wanted to know how it was possible for his ex-wife to file for spousal support when she had previously signed a property settlement agreement (also known as a "martial separation agreement") which clearly stated she would not receive spousal support. After asking several questions, I discovered the parties drafted the agreement themselves.

You should never draft your own separation agreement! It's particularly dangerous if you have minor children, have any assets and/or you or your spouse were or are now active US military. Even if you don't have children or marital assets, and neither of you were in the military, you still shouldn't draft your own separation agreement because you could, for example, fail to include what I like to call "magic words" in the separation agreement and that could leave you exposed to a future claim by your ex-spouse, like the gentleman that called me this morning.

I know how tempting it must be to either use these self-help books or online services that say they will provide you with all you need to draft your own separation agreement. Nonsense! First of all, most of those agreements are not state specific, even when they claim to be. That means some of these agreements could be unenforceable in Virginia and others could simply cause you a great deal of litigation later. Second, those agreements do not include many of the "magic words" like "this paragraph is not modifiable by any court for any reason." Third, those agreements are drafted to reach the whole population, not your specific family or your finances. When you have an agreement drafted by an attorney it is very specific to your unique family and financial situation. And finally, I have yet to see an agreement drafted by the parties either through a book or via the web that doesn't have some problem.

Do yourself a favor and have an attorney that specializes in family law draft your separation agreement. Yes, it may cost a little bit more to have an attorney draft your agreement than it would for you to do it, but trust me, it could save you a whole lot of money and heartache in the future.

I'm a lawyer and I didn't draft my own last will and testament. I hired an attorney that specializes in that area of the law for the very reasons I just stated above. It just isn't worth the so-called savings to do it on your own.

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