What an agreement of separation is
A separation agreement is a contract, or an agreement that you and your spouse enter into that outlines the agreement of the parties to live apart. Once signed, the separation agreement becomes a legally binding contract.
The primary purposes of the separation agreement are to divide assets and debts that have been accumulated during the marriage and to preserve for the future that which is divided. If a couple has children , the separation agreement should also address how much time each parent will spend with the children and what will happen if they cannot agree regarding custody or visitation, among other things. Some couples in Virginia who are not legally married will enter into a separation agreement in order to address the division of their possessions, debts, and the payment of child support as needed.
Requirements for one in Virginia
In Virginia, there are no specific statutes governing separation agreements. The laws of contracts apply to separation agreements as they do to any other type of contract. A separation agreement is a contract between the parties to the marriage. With respect to family law, in addition to general contract principles, the law relating to separation agreements has been developed through court decisions. Most of those have held that the terms of the separation agreement must be in the best interests of the parties’ children. For instance, in the case of Chawla v. Chawla, 32 Va. App. 302 (Va. Ct. App. 2000), the Virginia Court of Appeals held that "the trial court erred in upholding the separation agreement that allowed the parties to purchase a home for $339,590 on the assumption that when the parties’ oldest child graduated from college, there would be enough equity in the newly acquired home to pay off the debt and reduce it to a $160,000 mortgage on the home. Noting that the parties’ youngest child would not reach majority for 16 years and the oldest son graduate in 18, it reasoned that it was feasible to assume that the debt would be paid off at that time, but that the age of the youngest child counseled against it. The Virginia Court of Appeals held that the trail court erred in upholding the separation agreement.
Separation agreements become irrevocable if they are incorporated into the final decree of divorce. In the case of Sullivan v. the Commonwealth of Virginia, 266 Va. 54 (Va. 2003), the Supreme Court of Virginia held that it was reversible error to rule that a provision in a separation agreement that had been incorporated into the final decree of divorce was invalid.
Separation agreements are not themselves enforceable against a third party such as a financial institution. For instance, in the case of Wharton v. First Virginia Bank, 268 Va. 354 (Va. 2004), the Supreme Court of Virginia allowed a mortgage company to foreclose on a home sold to a third party after the divorce. The separation agreement had required that the wife transfer her equitable interest in the home to the husband without the mortgage company’s approval. The mortgage company did not approve the sale of the house to the wife’s brother. The separation agreement was valid, but was unenforceable against the mortgage company.
Essential clauses for agreements
In general, there are five key components that should be addressed in a separation agreement:
- Division of Property – the parties need to agree as to how to divide assets and debts, so the agreement should set out in detail what is (and is not) included in the marital estate, and how the property will be divided between the parties.
- Child Custody and Parenting Time – the parties may agree that all issues relating to parenting are reserved to be dealt with later in a court order, or they may agree that they will jointly prepare a custody and visitation schedule for the court’s review and approval. The agreement, at a minimum, should state where and with which parent the child(ren) will live during the school week, and with which parent the child(ren) will spend the weekends. If one party will be the primary physical custodian, the agreement should set out the schedule for parenting time for the non-custodial parent.
- Child Support – this is generally a straightforward issue, especially if the parties have reached an agreement as to how to divide parenting time. With limited exceptions, Virginia courts will follow the statutory guidelines for child support and the parties will have limited ability to modify that support.
- Spousal Support – also referred to as alimony, this can be complex, especially if the parties have been married for a long time. Virginia law has outlined factors for the court to consider in determining spousal support, including entitlement, factors used to determine the amount of support, duration and modification.
- Other – if there are any other issues that the parties wish to address in their agreement, such as a waiver of maintenance, restrictions on notice of sale of property, restrictions on removal from the jurisdiction, or a waiver of interest on deferred payments, those issues should be addressed as well.
How to tailor one for Virginia
In Virginia, much like in other states, separation agreements are an essential tool for couples who wish to amicably settle the terms of their divorce before it is finalized. However, unlike some other states that provide more rigid guidelines for such agreements, Virginia law is decidedly flexible. This means that the separation agreement can be tailored directly to suit the specific needs of the couple involved to help ensure that their unique needs and goals are met when negotiating and drafting the separation agreement, particularly with regard to property, financial, and support issues.
Couples are not required to divide things equally, and spouses are not obligated to give away half of everything that they own once the couple separates. Instead, the law on separation agreements allows a flexible framework for couples who are willing and able to negotiate the terms of their separation.
When a couple decides that they would like to create the terms of their separation for themselves rather than litigating them out in court, there are a few major areas to consider. These include how best to separate jointly-owned financial accounts, whether spousal support is appropriate in a given situation, and how children will be raised after the couple separates. In addition, the couple can also decide to divide their property however they see fit.
Of course, none of these decisions comes without certain complications that may arise. It may not be advisable for one spouse to remain in a jointly-owned family home, for instance, if he or she is primarily responsible for caring for the couple’s young children. On the other hand, if one spouse is a high-income earner while the other has been a stay-at-home parent for years, it might make the most sense to provide spousal support to meet that spouse’s living needs until he or she can get back on his or her feet.
It is important to remember that separation agreements made during the separation period do not have to be final, but can instead be used as a way to communicate desires and intentions to a spouse. When a couple is able to do this, then the absentee spouse is more likely to agree to the terms set forth in the agreement.
In Virginia, a lot can be done, and many different opportunities exist to customize a separation agreement for your separation. These opportunities can be beneficial, as they provide a way to draft a separation agreement that reflects the distinct needs of both spouses while still creating legally-enforced terms for their separation.
Challenges homegrown agreements
Common Challenges and Practical Solutions
While taking the DIY route may save on legal fees, it is important to consider the potential challenges that couples may encounter during the preparation of a separation agreement in Virginia. For instance, a couple may agree on dividing their assets 50/50. However, this could pose a problem if one spouse owns significant assets in a business. In that case, it would be important to have the business appraised to determine its true value. If neither spouse can manage a business appraisal on his or her own, an attorney can help to identify whether a business appraisal is necessary for a fair property settlement. Another issue may be deciding on alimony when the couple does not have any children, and no property was acquired during their marriage. Despite the lack of children and property, alimony can still be an emotional and controversial issue . Virginia law addresses three types of alimony: lump sum, periodic, and rehabilitative. A couple should take time to research the implications of each type. Alimony can cover everything from basic expenses to college tuition. In addition to these challenges, there are several legal issues that may arise from drafting a separation agreement in Virginia. It is important for each party to review the terms of the agreement with a qualified attorney in order to understand all legal rights and obligations. In some instances, an agreement can be negotiated in advance of filing a divorce action. However, if you and your spouse cannot reach an agreement, the court may decide to determine an equitable distribution of the couple’s assets and debts. An equitable distribution does not necessarily mean a 50/50 split. It means each party has a fair and reasonable share of the property.
Using sample agreements
You can find many separation agreements on the Internet. There are two ways to use these documents: you can use them as a template to follow in your own drafting, or you can use them as examples to improve your own draft. Either way, it’s important to understand that these documents usually represent one party’s position, not necessarily what a court would approve.
In the vast majority of cases (90+%), an experienced Virginia divorce attorney wrote the agreement. The attorney would have considered both Virginia law and his or her client’s best interests and then drafted the document. Typically the lawyer is representing the spouse who most needs the document and is trading that need (followed by a heightened level of risk) for a more favorable outcome on other issues. Spouse A’s attorney sends Spouse B’s attorney the separation agreement. The negotiating parties discuss points. The attorney for Spouse A raises arguments against certain points being fair or lawful and Spouse B’s attorney concedes and revises their draft accordingly. This process is repeated until the negotiations from both clients create a settlement agreement that is signed by both parties.
By the time you find that document on the internet, it is the culmination of several discussions between the two lawyers across several rounds of revisions. If it were an art project, we’d call it impressionism. But all the steps above don’t occur once under a bridge at midnight when the storm has started and the water is rising.
A separation agreement that you can find on the Internet is not necessarily going to be a document that your judge approves. If you find a sample separation agreement online it is crucial that you have reviewed it with your lawyer. These templates sacrifice clarity and predictability for the sake of brevity, and you cannot fully understand the risk to each party unless you have also reviewed each clause with your lawyer. It is almost always a mistake to adopt an already written separation agreement without fully understanding how its provisions change your rights and obligations because each person’s situation is unique.
When to hire an attorney
It’s critical that you seriously consider consulting with a lawyer before signing any separation agreement. Even if you believe that the agreement is fairly drafted , without the assistance of a lawyer you may not know what you are giving up or the rights you may be entitled to under Virginia law.
You should consult with a lawyer before finalizing the Division of Marital Property or Picking the Right Custody Arrangement. You should consult a lawyer before waiver spousal support. You should consult a lawyer before signing any agreement which affects your legal rights.