Defining a Marital Separation Agreement
A marital separation agreement is a contract between spouses intended to resolve certain issues while they are living apart. A separation agreement is an excellent tool that many couples use to voluntarily settle their differences and allow them to move forward with their lives in an amicable way. Holding parties accountable to a legally binding written agreement that is acceptable to the Court (if ultimately approved) preserves everyone’s time, money and emotional well-being during a divorce.
Whether a separation agreement is appropriate or advisable depends on the circumstances and needs of the parties. A separation agreement can be entered into at any appropriate time during the pendency of a divorce action, but they are often entered into at the outset of a divorce case, at the end of the preliminary stage before trial, or even during trial. Sometimes separation agreements are incorporated into divorce decrees and sometimes they are not. Importantly , separation agreements are enforceable in both contract and divorce actions.
A separation agreement is generally more comprehensive than a simple consent or "quickie" divorce because it covers all the areas of contention that parties negotiate and is not limited to issues of divorce. Virginia follows the "period of separation" rule for entry of a no-fault divorce and therefore a couple may obtain a "no-fault" divorce so long as they have lived separate and apart without cohabitation for one year and a separation agreement may memorialize the terms that support the period of separation. In Virginia, separation and divorce are separate processes. In order to obtain a divorce, a spouse must fulfill the statutory requirements for a ground for divorce as well as satisfy the requirements for entry of the decree of divorce. Because the provisions of a separation agreement are limited only by the scope and agreement of the parties, a separation agreement can include provisions encompassing issues beyond those relevant to the entry of a divorce. The most common issues included in a separation agreement are: grounds for divorce, divorce from bed and board (i.e. legal separation), custody, equitable division of debts and assets, alimony/spousal support, division and distribution of retirement and pension accounts, health insurance, health care proxy and other powers of attorney, debts and how they will be divided, arbitration/mediation of future disputes and other miscellaneous issues.
The Essential Elements of Virginia Separation Agreements
When entering into a marital separation agreement in Virginia, it is critical to include the essential components that will cover all relevant issues. An agreement should address issues such as the following:
- Identification of Parties and Purpose of the Separation Agreement- that is, the reasons why the parties are entering into this agreement.
- Division of Assets and Debts- this should include how the marital home is to be handled, and how the equity is to be divided; how to handle bank accounts, jewelry, business interests, and recreational vehicles.
- Child Custody and Contact Schedule- where the child or children will spend their time, such as a joint legal custody arrangement with a primary custodian, and a more detailed schedule of when the child will be with each parent.
- Child Support- the basic child support calculation, and any extraordinary expenses for the children.
- Spousal Support- whether alimony is payable, and in what amount.
- Insurance- the responsibility of maintaining health insurance for the children, and other types of insurance.
- Income Taxes- who gets the dependency exemption, and how tax refunds will be handled.
- Other Issues- any other matters that are unique to the parties, or additional issues that may need to be addressed.
Legal Considerations in Virginia
The legal requirements for a valid separation agreement in Virginia are straightforward. The law in Virginia does not, for example, require separation agreements to be notarized in order to be valid. In fact, neither party even has to have an attorney to develop a valid separation agreement. Of course there are certain advantages to having a separation agreement drafted by an attorney, but technically, a husband and wife can draft a separation agreement themselves and still satisfy the requirement of a contract between them.
Another requirement for separation agreements is that the agreement be voluntary. In other words, no one should be under duress or a threat of consequence by the other spouse to sign a Virginia separation agreement. For example, if your spouse tells you that they will refuse to consent to a divorce from you unless you sign a separation agreement, that separation agreement may not be voluntary and therefore voidable by the court. Another example would be if the other spouse threatens consequences to your children if you do not sign a separation agreement. These would be other examples of a separation agreement not being voluntary.
It also important to remember that Virginia separation agreements, like all contracts, must be supported by consideration. In order to have a valid separation agreement under Virginia law, there must be an exchange of something of value for each party. This is generally satisfied by the divorce of the parties, the waiver of spousal rights, the settlement of property issues and/or the maintenance of the children. However, there must be a legitimate exchange of value.
Benefits of a Marital Separation Agreement
By memorializing the provisions of separation in a formal Marital Agreement, the parties are avoiding the problems associated with an oral agreement, which can easily result in conflict when one party has a different recollection. When parties are able to avoid court by agreeing to their terms and conditions, a Marital Agreement saves the time and associated costs of going to court. The terms of a Marital Agreement can become a basis for subsequent divorce litigation. If the parties are unable to agree to certain terms in a Marital Agreement, they may separate those terms which they mutually agree upon and list separately, the terms to which they have not mutually agreed upon and submit them to the Court for decision. Furthermore, if the parties do not adhere to the terms of their Marital Agreement, a party can seek enforcement in the Court. Finally, if a party is advised to file for divorce prior to the signing of a Marital Agreement, the party may use the Marital Agreement in lieu of filing a Complaint of Divorce so long as the Marital Agreement contains an express waiver of the statutory requirement to file a Complaint with the Court.
Drafting a Separation Agreement in Virginia
The process for drafting and finalizing a separation agreement begins with the client, of course. Assuming that both parties are in agreement as to the terms to include in the document, one party will usually prepare a draft of the agreement and either send it to the other party or offer to sit down to talk about it. For many couples, it is more simple to have their lawyer prepare a draft of the agreement than it is for the parties to negotiate themselves. Once the agreement is prepared, the non-drafting party will review the agreement and either (a) direct the lawyer to make certain changes, or (b) ask the lawyer to arrange a time for the two of them to sit down together and negotiate the terms of the agreement. It is recommended that both parties to a separation agreement seek independent counsel to review the terms of the agreement. This is probably the most common pitfall that can occur to an unrepresented spouse. Never sign the agreement without understanding all of its terms , and consulting with a lawyer first. If the parties are not represented by legal counsel at the time they sign the agreement, then the agreement will still be enforceable if a very specific clause is added to the end of the document: "We each desiring the other to be fully advised of our rights to legal counsel before the execution of this Agreement, both acknowledge and agree that we each knowingly and without any undue influence on the part of the other have waived that right and independently drafted this instrument to which we are both bound." You will note from this language that the parties must both be willing to admit they each had that opportunity to consult with counsel and affirm they signed the document without outside pressure to do so. The last sentence, suggesting they wrote the document themselves, is also slightly misleading. The parties should not be writing this document themselves.
Enforcement and Modification of Agreements
In the event that a spouse refuses to abide by the terms of a marital separation agreement (referred to as an "MSA" or "separation agreement") in Virginia, one spouse can initiate court action to enforce the agreement. Pursuant to Va. Code ยง 20-155, a separation agreement is enforceable as long as the court has jurisdiction of the parties’ divorce matter and the agreement is recorded in writing and not revoked by a later separation agreement or dissolution decree. If a separation agreement has both property and spousal support provisions, it may be enforced in its entirety. If the agreement deals with property distribution and spousal support and is signed and notarized, its terms can be enforced like a court order. If it deals with custody and visitation, however, it must be expressed in the language of a court order before it can be enforced as an order of the court. In essence, the parties are bound by their separation agreement until and unless the court changes its terms.
While it is unlikely for a separation agreement to be reviewed and modified if it is fair to both parties at the time of signing, parties can modify the terms of their agreement by mutual consent and can have the terms of their agreement incorporated into the final decree of divorce for the purpose of enforcement, if desired. As long as nothing in the MSA calls for it to be incorporated in a certain fashion, the parties are free to agree on how to incorporate the agreement into the final decree.
Although a MSA is enforceable as described above, the court can still modify or set aside its terms, but only when there is an unusual change in the circumstances of the parties that calls for review of the current arrangement to achieve the level of fairness provided in the original separation. A significant or unreasonable change in circumstances can be a basis for modifying a support provision, but will not be enough to modify or set aside a property distribution provision unless the change in circumstances was unknown at the time the agreement was executed or unless the MSA was unjust or inequitable. Courts in Virginia often credit children’s development as a significant change in circumstances when modifying or setting aside a support provision.
If an agreement is equitable, then it should be made effective in the failure of one party to uphold the original terms. The law does allow for enforcing the agreement and providing the remedies provided by law rather than finding the agreement whether partial or complete to be unenforceable.
Separation and Divorce in Virginia
A separation is different than divorce. In Virginia, separating from a spouse is not divorce. When you separate from a spouse you remain married to that person, although you are living separate and apart from him or her. To understand whether you want to separate or divorce you must have knowledge, assuming that your goal is ultimately to divorce. A separation agreement is entered into between you and your spouse to provide for the way in which you and your spouse will live while you are separated. If you do not have a separation agreement, or if you do not abide by the terms of that agreement, or if your spouse does not abide by the terms of that agreement you may obtain a "no-fault" divorce after you have been separated for one year, or after you have been separate for six months if you have no minor children and both parties mid a signed Separation Agreement resolving the financial issues and child issues that must be approved by a Judge.
Common Mistakes to Avoid
There are a number of common mistakes that parties make when negotiating and/or executing a marital separation agreement. This section will focus on those mistakes and give you some tips on how to avoid them so you can make your agreement as enforceable as possible.
For instance, one of the most important factors in making an agreement binding is to ensure that it is signed and notarized by both parties. Parties should be careful not to begin negotiations and start to act if a written agreement is already in place. While email or electronic versions of an agreement may be available, it is best practice to wait until both parties have signed a paper copy of the document before taking any action.
Another mistake is not fully disclosing assets, debts, or income to the other party. It is crucial that each spouse have a complete and thorough understanding of the other spouse’s financial situation in order for the agreement to be properly negotiated and enforceable down the road . It is also important that the terms of the agreement not result in an unfair advantage to one party over the other, for example in spousal support calculations or outlining your property division. Unreasonable provisions could be grounds for voiding the agreement.
Likewise, it is important that the terms of the agreement are not ambiguous or confusing. Issues should be clearly identified and all options exhaustively discussed. A layperson may not fully understand the legal implications of the agreement, which can result in unintended consequences down the road.
Before signing the agreement, read over it carefully to make sure you understand all of the provisions. Oftentimes, the party with more knowledge of the law or the wealthier spouse has the upper hand when negotiating the terms of the agreement. Before signing any agreement, make sure you have a trusted and knowledgeable lawyer review the document to ensure it is fair, clear, and enforceable.
And finally, take a look at your agreement after some time has passed in order to make sure all provisions are being followed, as agreements can be difficult to enforce even when they are well-written.