What is a VA Separation Agreement?
A VA separation agreement is a written document in which parties to a Virginia divorce agree upon certain terms and conditions which will guide them after separation until the parties are divorced. The actual divorce will occur later by either a settlement agreement (in the case of an uncontested divorce) or through trial proceedings if the divorce is contested.
The VA separation agreement may address all material and relevant issues of the parties, including spousal support and/or child support, custody and visitation, the division of assets, the allocation of debts and attorneys’ fees, among other matters of importance. The agreement will also contain an integration clause (indicating that it is a complete agreement of the parties) and a merger clause, as well as incorporation language (to reflect in the separation agreement that the court has jurisdiction over the matter).
The contents of the VA separation agreement are based on the individual circumstances of each family, and may vary from one family to another depending upon the nature of the matters involved . The separation agreement will become effective upon execution and be valid and enforceable per its terms between the parties; however, court approval via incorporation into a court order is required to render it effective in the event to third parties. When the VA separation agreement addresses support and/or custody and visitation, it avoids the necessity for court appearances by the parties to obtain support and/or visitation orders.
The Virginia separation agreement saves parties from incurring additional legal expenses to obtain court orders, for example, to start receiving child and/or spousal support and preclude liens against marital assets and income.
When parties agree to the terms of a VA separation agreement and execute it, the court will often enter it as consent order, thereby eliminating the need for them to proceed to Court with a contested matter in which they would likely incur additional attorneys’ fees and costs in the interim.
Statutory Requirements in Virginia
In Virginia, a valid separation agreement requires both parties to be legally entitled to an absolute divorce from the bonds of matrimony – meaning that at least one party must be eligible for divorce due to grounds of divorce or the passage of the time required by statute to obtain a divorce based on mutual consent (six months if you have no minor children of the marriage and a year if you have children of the marriage, when you and your spouse have physically separated). In addition, Virginia has a residency requirement. At least one of the parties must have been residing in Virginia for not less than six months prior to the divorce. This means that the parties must file for an absolute divorce in the Virginia Courts, and submit their separation agreement early in the process of the divorce. As the separation agreement is a legally binding contract between the parties, it is important that the agreement be drafted as a thoughtfully prepared enforceable contract. It is essential that the agreement provide for all essential terms for child support and custody, spousal support and property division issues. A separation agreement is a good faith negotiation resulting in settlement to an absolute divorce.
Elements of a VA Separation Agreement
When a couple in Virginia decides to get a Separation Agreement, it’s important to understand that, although it’s completely voluntary, the law requires that the agreement be in writing. Further, there is no statutory requirement for it to include any particular language or clause. That said, there are certain components which most Virginia Separation Agreements routinely contain:
Division of Property – the parties agree to division of all property and debts; deduction of debt amounts from the divisible assets (for example, an account that is due in six months), and distribution shall be of the net amounts (meaning subtracting the debts from the market value of the assets); waiver of any claims hereof; failure to include an asset shall not preclude a later claim; right to amend.
Spousal Support – if spousal support is to be ordered, the form shall contain an agreed amount, length of time of payments, frequency of payments, and mode of payments, Waiver of future claims against that right to support by either party.
Children – the provisions concerning the children would include joint legal custody, primary physical custody to one party, possession of children schedule, visitation, and pick-up and drop-off times and locations. An agreement that the rights of parents may be enforced through the Juvenile and Domestic Relations Court.
Child Support – if support is to be ordered, the amount shall be in compliance with the Guidelines and will contain the exact amount due per week/month in slab form.
Mandatory provisions – the contract shall provide that (i) court retains jurisdiction for spousal support and child support opinions; (ii) court can enter a decree on custody/visitation if either party petitions the court; (iii) the parties have not been married for < a year; (iv) this agreement shall not be merged into a decree, and the agreements in this contract shall survive any decree of the court.
Voluntary provisions – the contract shall divide the property and debts of the parties such as a Detailed Table of Contents listing the parties’ property, a dollar value of all assets, identification of all assets, description of all real property including title owner and Fair Market Value.
Additional provisions – any other clauses such as an arbitration clause or a hand writing clause so that the parties signature shall be the final resolution and not be written in the margins of the page.
Mediation and VA Separation Agreements
Mediate, A mediation platform which can be utilized for free via any computer, tablet, or smartphone, via download apps or by connecting with Mediate through organizations or lawyers, is a very effective tool to reach resolution with a VA employer before the issuance of a Notice of Separation (also sometimes referred to as a "Notice of Intent to Separate"). The platforms provide a secure, confidential space for the employee and employer to discuss and potentially resolve the issues that are causing conflict with the employee’s employment. For VA employees, it is usually best to spend time preparing for the meeting, understanding the issues and offers involved, by getting input from an attorney, then engaging in the mediation process.
In mediation, the employee and employer will typically engage in three main phases:
As part of the Mediated Conference, often the employer understands the severity of issues involved with continued employment, and can then propose a last chance agreement directly during the conference.
The Mediated Agreement may include a detailed plan for the employee’s separation including a collaborative mechanism for reviewing a separation agreement in the light of the employee’s performance over a specified period of time. The Mediated Agreement may also include specific corrective actions the employee must take. Alternative factors to differentiate between whether the employee leaves on an involuntary basis versus a voluntary basis can include: the employee’s pending or prior claims, history of accommodation requests prior to the separation action, and the severity of issues leading to the separation agreement, including whether the employee’s poor behavior can be corrected or whether the employee’s communication style is a continued problem.
VA Separation Agreements Common Mistakes
Anybody who has practiced in this area will know that parties sometimes draft or execute separation agreements without truly thinking through all of the possibilities. And, even when they do think through all of the possibilities, the information they have may still be lacking or incomplete.
You need accurate information to make an informed decision. Sometimes there are mistakes and errors or omissions in documents. Sometimes the numbers change. Sometimes a spouse simply doesn’t get all of the money that they are really entitled to. In any event, it is essential that parties go into negotiations and make decisions with a thorough understanding of what assets and income there are and where they are located. I am big on information.
Once you have the information and you have figured out how to divide up the assets and income, it is important to memorialize your decisions in a final document, preferably a Separation Agreement. It is also important that the separation agreement fully and accurately reflect the parties’ intentions and is enforceable. You can’t always rely on verbal agreements or partial agreements , even if you have a lot of trust and confidence in your spouse and think that they would never go back on their word. In fact, there’s a good chance that a court will not ever enforce a verbal agreement even if both of you agree on every important aspect to your divorce. So, it is better to write it down in a way that would show an outsider that the parties had agreed to the terms of the agreement. Courts look to the Intent of the Parties when they review an Agreement.
Another common mistake is signing a Separation Agreement without reading it. It is amazing how many times I have had new clients come to me after having signed agreements they didn’t read. Of course, it is also amazing how many times I have had new clients come to me saying "I signed an Agreement without reading it and it is totally unfair". This is a clear example of "Buyer Beware". If it sounds too good to be true, it probably is. A good lawyer will not let you sign an Agreement you do not understand or that fully and accurately reflects your intentions.
Enforcing a VA Separation Agreement
For a VA separation agreement to be enforceable, it has to be in writing and signed by both of you. Typically, the document will state that the contract is entered into voluntarily, that the rights of the parties have been fully explained and the contract is fully understood.
If you signed the VA separation agreement, it can be enforceable. The advantage to this is to preclude future claims for spousal support benefits. A party cannot come back at a later time and make a claim for spousal support benefits as long as the contract is enforceable. Virginia courts are always going to uphold separation agreements unless they are obtained by fraud or coercion. Thus, be careful with the terms of the agreement. If you are not happy with them, then do not sign it.
In Virginia, there are no laws that determine the validity of a separation agreement from a court perspective. Therefore, the courts will uphold separation agreements that are set out between the parties, as long as they are voluntarily signed and particularly do not involve fraud or coercion.
If there is a breach of the agreement, the party harmed can go back into circuit court and file a breach of contract action seeking enforcement of the contract. This is most often how separation agreements are enforced. It is a remedy for breach of contract and can include attorneys’ fees if there is an egregious breach or a vexatious refusal to abide by the terms of the contract.
Modification of a VA Separation Agreement
Separation agreements are sometimes modified, both by mutual agreement of the parties and by order of the Court. Whether or not a court will approve such modification will depend on the circumstances of the case. As with any type of law, however, there are certainly hints to be gleaned from the law regarding modifications to separation agreements.
Financial changes are the most common basis for a court to alter or amend a separation agreement (also known as a Property Settlement Agreement). The concept here is that if one of the spouses can show that a significant change has occurred in his or her financial situation since the execution of the separation agreement, a court may well consider adjusting the agreement accordingly. Significant changes include such things as: the discovery of hidden income, the loss or gains of a job, or an unanticipated promotion.
Although less common, courts will also modify a separation agreement when something has been left out by mistake. An example of this might be a specific provision in a separation agreement dealing with who will pay child care, and the provision is either missed by the parties before the agreement is executed, or the language is inadvertently omitted from the agreement itself. Where a separation agreement is silent or ambiguous on an issue (such as spousal support) the Court may sometimes intervene and clarify the matter.
The question of modification of a separation agreement often goes hand-in-hand with the issue of enforceability. In short, the party alleged to be in violation of the agreement must establish that the obligation is not either unambiguous or enforceable before a modification will be granted. Many courts, rather than simply accept the claim of change of circumstance, require clear and convincing proof of unambiguity and other criteria, including that the party opposing the modification is entitled to enforcement of the agreement in its current form regardless of whether or not a modification would be appropriate.
Modifications of separation agreements in Virginia also touch upon the issue of equitable discretion in regard to spousal support. To show that a court has abused its discretion in the award, it must be shown that the award was either plainly wrong or without evidence to support it. A non-exhaustive list of discretionary factors include: financial resources of the parties, earning capacity of the parties, education and training necessary to achieve or improve employment, duration of the marriage, obligations of care for the children of the marriage, age and physical and mental conditions of the parties, damges from misconduct by either party, custody arrangements, and property interests.
When to Work with a VA Family Law Attorney
As with many other agreements/contracts, separation agreements are often prepared without the assistance or guidance of an attorney. When the parties are amicable and have no children, there may be very few issues to negotiate, and/or the terms of the agreement are fairly simple and clear enough that no legal advice is needed. There may be situations, however, where the parties are not amicable, where there are children of the marriage or prior to the marriage, or more significant assets and liabilities which must be divided. In those circumstances , it is very important to get legal advice from a Virginia separation and divorce attorney to ensure that the terms of the agreement will be consistent, both with the other individual’s legal obligations and with the law of separation and divorce in Virginia.
There are a number of reasons why it is important to have a VA family law attorney review or draft your separation agreement.
In short, it is always in your best interest to have legal advice before signing a separation agreement when the parties to the agreement have children or there are significant assets and liabilities. Failure to do so can create both conflicts and costs at a later date that easily could have been avoided.
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