What is a Separation Agreement?
A separation agreement is, most generally, a written contract that settles the issues that will eventually make their way into a divorce action. As Virginia family lawyers, we typically use the term to refer to the contract signed at the time that a couple separates, which in effect resolves the issues contained in a divorce action that is filed at a later date.
While there are clearly many aspects of divorce that do not need to actually be resolved by agreement prior to the filing of a complaint, a separation agreement is often preferred for a number of reasons. First, without a separation agreement, or a temporary order approved by a circuit court judge over the specific objection of one of the parties, neither party is legally entitled to any spousal support. Additionally, disputes regarding marital property or debts cannot be resolved through a contested proceeding until a judge has requested or ordered a valuation of all of the items of consequence to the parties, and a value placed upon them . Another reason why a separation agreement is often preferred is that it establishes a formal, enforceable set of requirements on the respective parties, such that, if one party fails to comply with the agreement, the other party can easily point to a clear violation that may be enforced through a court order.
A separation agreement is a contract between a husband and a wife concerning all of the issues that will be decided as part of the divorce. It is not a divorce decree in itself, and thus has no inherent enforcement mechanism. It is simply an agreement between the parties as to how to resolve issues before the judge has had an opportunity to preside over a trial or the matter. It is also not to be confused with a "titling agreement." A titling agreement is a separate document that can be attached to a deed of transfer in order to ensure that, say, a house or car is transferred to the party who is – for the time being – able to manage, fund, and/or possess these assets.
As a practical matter, however, most separation agreements do specify that a failure to abide by the terms of the agreement may be enforced in court through a contempt proceeding.
Significance of Separation Agreements in Virginia
The importance of a separation agreement in Virginia cannot be overstated. In particular, I have found that many people going through the divorce process do not initially understand its importance.
In my practice, I have seen many people who realize their separation agreement is important when they reach a critical juncture and the failure to have provisions in writing becomes the issue. I hope that people find this blog post prior to facing that situation. For example, I have seen many situations where there was an agreement between a separating couple that one or the other spouse was responsible for a debt and one person later changed their mind on this issue. Or, alternatively, one person may agree to pay more support than they originally planned to. However, if the other person is in agreement, they may have a legal right to have the increased amount enforced.
Requirements for a Valid Separation Agreement
While separation agreements are not required to be in writing or signed to be legally binding contracts Virginia law requires that such agreements be in writing and signed by the parties when litigating divorce cases in the circuit courts. In today court orders, lawyers typically incorporate by reference, if possible, the language in the separation agreements covering all aspects of the parties’ divorce. If you elect to skip the expense of hiring a Virginia divorce lawyer, be sure that your separation agreement is in writing with four corners", and include the full names of the parties and all information included in your written "Memorandum of Agreement" which is a type of the separation agreement. In Virginia, under most circumstances, a post-nuptial agreement must be in writing in order to be enforceable. The Agreement must also be notarized.
In order for a separation agreement to be valid, both spouses must consent to the terms of the document. It is commonly agreed that the parties’ agreement is voluntary, and the court will assess the voluntariness of the agreement by looking to see if there has been a full and fair disclosure of each parties’ financial condition, whether the parties have independent counsel, the relative economic positions and circumstances of the parties, the parties’ expectations, if any of the extent and form of support or property brought to the marriage (if any), the spouses’ personal liability for debts, the tax implications surrounding the terms of the agreement, and the parties’ diligence in the proceedings.
Typical Concerns Covered by Separation Agreements in Virginia
Virginia separation agreements are generally all-encompassing documents and typically address issues related to the following topics:
Division of Property
Like a property settlement agreement, a Virginia separation agreement dealing with the division of property is designed to divide the spouses’ marital assets and debts. Any property that is identified in the separation agreement will no longer be part of the marital estate at the time the divorce is finalized. The division of property is controlled by the statutes and case law, but parties are free to negotiate a division of assets and debts that they deem appropriate and that is in their best interests. The important thing to remember is that the separation agreement needs to address all of the marital assets and debts, and how the parties have agreed to divide them. A Virginia separation agreement is not meant to leave any gray areas, so everything needs to be clarified.
Spousal Support
Under the law, court-ordered spousal support must be requested when the divorce package is filed with the court. There are times when the parties can agree to waive their spousal support rights, or agree on an amount without the need for a court order. Virginia separation agreements often contain provisions dealing with not only the calculation of spousal support, but also how many years support may be paid; the time frame for payment of support; making provisions for the possibility of payor default; and providing for the possibility of modification of duration and amount. Depending upon the duration of the marriage, and whether there are minor children involved, a Virginia separation agreement can be used to provide for the mutually agreed-upon support rights of the parties after they enter into the agreement. Important considerations include ability to pay, as supported by evidence, and the tax ramifications of deductibility. Just because parties agree to an amount does not mean the court will approve it, or that the parties cannot change their minds down the road. Again, this is why it is important to have all potential scenarios addressed in the separation agreement.
Child Custody
Virginia Supreme Court underhill v. underhill established that the parties can agree to child custody at any time, even pending final order; since the parties have the constitutional right to settle cases, there is nothing to stop them from doing this at any time. Therefore, a Virginia separation agreement is legally binding once both parties sign, and can include references to possession of children; where the children reside after divorce; where the children are to attend school; who has the right to make decisions regarding the child’s educational, medical and religious needs; and how parenting time will be divided between the parties.
Visitation
Like child custody, visitation between the non-custodial parent and the child(ren) can be addressed in a Virginia separation agreement. While this is a right that is ordinarily awarded by the court, a separation agreement can preempt the need for future litigation if the parties have agreed to a specific plan. An issue often addressed in a Virginia separation agreement is what happens to visitation if either party moves out-of-state, to another locality, or if the child enrolls in school out of the area. Again, the right to visitation cannot be waived, taken away, or denied; that is a constitutional right. However, the parties can agree to an amount of visitation. These things need to be taken into consideration.
Both parties to a Virginia separation agreement must sign it in front of a notary public, and provide valid identification.
A Virginia separation agreement is an enforceable contract under the law, and cannot be changed unless both parties agree. In fact, any unilateral changes violate the contract.
Creating a Separation Agreement in Virginia
It is always advisable to have an attorney draft your separation agreement. If your spouse insists on using his or her own attorney and an attorney cannot be afforded, seek the input of a clerical worker or legal assistant regarding the formation of your separation agreement, oftentimes, a well-trained legal secretary will "draft" the separation agreement if requested by their attorney . At a minimum, if you choose to draft your own separation agreement, you should at the very least consult an attorney prior to signing. Ensure that all qualifying "legally binding" requirements are contained in the separation agreement. Some of those requirements include provisions on child support, child custody, spousal support, etc. There are also some miscellaneous qualifying requirements:
Amendment or Enforcement of Separation Agreements
A separation agreement is just that – an agreement. As such, it can be modified by the parties either in writing, verbally or by conduct. While a separation agreement is a binding contract between two people, parties to a separation agreement – to the extent they both agree – may not feel that any sort of legal enforcement mechanism is necessary to secure performance of the obligations outlined in the separation agreement. Their willingness to the let casual approach towards enforcement of the separation agreement may change, however, in more serious circumstances.
If the parties to a separation agreement come to blows about the terms of such an agreement and one party believes that the written terms are being violated, that party may file a complaint with the court enforcing the provisions of the separation agreement or seeking damages from the other party for noncompliance.
Suits regarding the enforcement of separation agreements are heard in the Circuit Court for the jurisdiction in which the separation agreement was executed or in the jurisdiction in which the violative act or omission occurred. Upon the filing of the complaint, the matter will be assigned to one of the judges and prosecuted as a contract dispute. In other words, the judge will hear the facts and circumstances surrounding the drafting and execution of the separation agreement and determine if the written terms and conditions of that agreement have been violated. If the trial judge finds that there have been a material breach of the terms of the separation agreement, 1.) he or she may order the party to comply with the terms of the agreement and 2.) the court may award monetary damages to the party who filed the compliant – this could be a sum certain or future payments.
As a practical matter, courts are often very sensitive to the need to "get the parties back together," if only for the purpose of getting the parties to get along enough so that their children can thrive in a healthy environment. While a party is entitled to file his or her complaint and go through the process as it has been outlined above, there is the ever-present possibility that the case will be certified by the Circuit Court judge to the juvenile and domestic relations district court for enforcement. In the end, however, the court will want to make sure that the defendant is held to the separation agreement and its terms, whether the action is filed in the Circuit Court or the juvenile and domestic relations district court.
Common Pitfalls
Common mistakes to avoid when forming a separation agreement in Virginia
Virginia law requires that a separation agreement be in writing and signed by both spouses. While it’s often tempting to quickly draft a one-page agreement at the outset of your separation, such an agreement is often lacking in necessary details. The required and potential terms covered in a Virginia separation agreement include:
- Child custody, visitation, and child support for minor children
- Spousal support
- Division of property and debts
- Division of tax exemptions
- Life insurance provisions
- Health insurance provisions
- Payment of attorney’s fees and cost of the agreement
- Division of pension benefits
- Enumeration of real estate
- Bank account provisions
- Majority vote provision for decisions regarding the children
It’s important that both you and your spouse discuss all of the above issues and consider whether any additional considerations will apply to your specific situation. Maybe you share a pet that one of you will continue to keep after the separation. Perhaps you have valuable artwork or jewelry that should be addressed. Whatever the case, it’s always best to consider all of your relevant circumstances and have an attorney review your separation agreement before you sign it. We have seen couples agree to "give" one party certain property, only to have that person sell the property for profit after the parties are fully divorced. Or a party might agree to use funds from a joint account to pay debts on behalf of the other party, only to later argue that the expenses were not authorized by the agreement. In these situations, the initial separation agreement is likely to contain a provision for you to specifically agree to the "marital waste" that is being undertaken. However, if you don’t foresee a problem at the time of the agreement, then that language will not be included.
A Virginia separation agreement is generally legally binding, and can be enforced by a court. However, in some special circumstances, a separation agreement can be set aside. The circumstances under which an agreement can be modified or set aside are essentially the same as the circumstances for which a court can modify a spousal support award in Virginia. Those circumstances are: (i) a material circumstance in existence at the time of the agreement could not have been contemplated by the parties when the agreement was created, (ii) a change in circumstances renders the agreement unjust and inequitable, or (iii) a party engaged in an affirmative act of fraud or intentional, serious marital waste in the creation of the separation agreement. The most important thing about a separation agreement is that at the time of signing the agreement, you intend to be bound by all of its provisions. That means don’t sign it with the intention of being able to come back later and ask the court to revise the agreement. And it’s never a good idea to come to an agreement by which you believe your spouse has committed fraud or marital waste with respect to you. So remember, if the other party promises to sell their car, use the proceeds to pay a marital debt, and then turn over evidence of the sale for your review so that you can determine whether you approve or not, make sure you don’t anticipate forgetting about that evidence. Because if you get comfortable with the status quo and fail to review it, the bar to revision of the agreement has been satisfied. But if we can all agree that you want to be bound by everything you sign, the situation becomes more straightforward and a court will not be likely to modify the agreement.
When to Consult a Lawyer
There are several circumstances in which it is necessary to seek legal advice with regard to the creation of a separation agreement, or when circumstances have changed so that a current separation agreement should be modified:
- If you and your spouse are attempting to reach a separation agreement without the involvement of an attorney, then you should at least have a lawyer review whatever you intend to sign. Some people choose to negotiate a separation agreement on their own before one party has filed for divorce. While this may be desirable because the parties are on good terms and wish to obtain some form of resolution outside "the system," there are many pitfalls that can be avoided by having a lawyer review the papers. Doing so will usually indicate that both parties have not been as liberal with the division of assets and debts as they could be. It also assists in establishing that both parties have been forthcoming with their complete financial picture, since a lawyer will usually have experience in gathering up the various documentation that will be necessary.
- If you have separated and are thinking of signing a separation agreement, there may be issues relating to child custody, child support, visitation, spousal support, and/or division of property that require further explanation .
- The law relating to separation agreements is complicated; the interplay of case law and statutory law results in a number of different potential scenarios that can impact the future of a family. Having a lawyer involved to explain your situation and advise you as to the particular aspects of the law that will apply to your specific case will assist in creating a document that is ultimately satisfactory to all parties.
- In particular, if there has been a history of domestic violence, the separation agreement should state explicitly any restraints that are necessary to protect the victim and her/his children. For example, if there is an order of protection, there should be an explicit provision stating that the parties are bound in their separation agreement to abide by the terms of the protective order and that a violation will result in a contempt of court action.
- If you are receiving spousal support, you should have an attorney review the document before signing to make sure that your rights are protected and to ascertain whether spousal support might one day be modifiable based on a future, involuntary loss of income.
- If the separation agreement is dividing property, it should include a detailed schedule of assets and debts, as well as a provision that states that if a formal transfer of title is necessary to accomplish the division, the parties will work together to effectuate the transfer.