What is a Legal Separation in the Commonwealth of Virginia?
In Virginia, a legal separation is only the process of separating while remaining legally married to your spouse. Once you are separated from your spouse, you are legally allowed to live your life autonomously, but your legal separation does not allow you to get a divorce. In Virginia, the separation process requires that you and your spouse live separate and apart from each other as you terminate the aspects of your relationship that are no longer working. That could mean you no longer wear your wedding rings or that you no longer live in the same property together. However, you still have obligations to each other to fulfill until you either get divorced or one of you dies.
Legally, the requirement for separation is to physically separate with your spouse while still being open to resolving your issues through mutual agreement. In Virginia, the law does not require that the spouses live in separate residences . Therefore, a couple who files for legal separation can continue to live in the same home while living separate lives, or they could decide to live apart. For purposes of your legal separation document, you both retain all obligations to each other until the separation document is signed.
In Virginia, you may be worried about impacting your finances by possibly having to pay spousal support or dividing your marital assets. Practical reasons for legal separation include the following considerations:
To remain separated in Virginia is at least a period of time you and your spouse spend apart but legally married. The length of time before you both agree to get a divorce can be as short as a few weeks or several years. You also have the option of using a legal separation to work on reconciling your marriage without being married in name only.
It is Crucial to Have a Separation Agreement
The decision of whether to marry is not one to which the parties should have arrived on a whim. So, also should be the decision to separate from that marriage. Just as you entered into your marriage with individual hopes, plans, and intentions, you, too, should enter into a separation agreement with intentions that will this time best protect your individual interests as you disentangle yourself from the marriage. You may have hopes for the future, but it is unrealistic to presume that your marriage will magically be able to resume the same status quo of the past once you split from your spouse.
Like marriage, your separated status will have many practical implications. For example, will you keep the family home and your spouse move on, or vice versa? What will your custodial arrangements be? Will there be child support or spousal support? If there are children, how will you maintain visitation and parenting time? How each of these issues is resolved in a separation agreement will have huge ramifications for your day-to-day quality of life.
Again, because your marriage is presumably of some duration (and you still care about each other), each of you will have hopes—based on your investment in the relationship—that the separation will lead to reconciliation. As a result, you should turn to a Virginia Family Law attorney to help to you draft a legally enforceable separation agreement that will protect your interests.
A well-drafted separation agreement takes into account issues that will arise in the event of a divorce. The resolution of these issues is done without requiring you to be legally divorced. This gives you the peace of mind—based on a legally binding document—that you have taken care of the issues relevant to your current situation and have put yourself in the best possible place should the relationship ultimately become irreconcilable.
When it comes to third parties such as banks, lenders, and your employer, having a legally binding separation agreement putting the terms of your separation in writing will help you to manage your resources, limit your liabilities, and protect your finances.
Elements of a Commonwealth of Virginia Legal Separation Agreement
A Virginia legal separation agreement must include an exchange of financial disclosure documents that provides a full picture of the assets, liabilities, and income of both spouses. The financial disclosure document is generally provided with a divorce complaint as a formality required by the court but does not eliminate the need for an agreement between the parties to address relevant issues.
Prior to entering into the agreement spouses must reach an agreement on their financial and property issues. The separation is complete when the spouses agree in writing to end their financial relationship. Time spent litigating on any of the issues is time wasted and expensive.
The family law attorneys at Whitestone Young are skilled in separating interests between spouses for clients in Richmond, Virginia. We understand your needs, and why a clean break is crucial for you.
How to Prepare a Legal Separation Agreement
A couple may draft their legal separation agreement together or with the help of a trained mediator. Much like mediating other aspects of the divorce process, creating a legal separation agreement allows the parties to have more control over their circumstances. For example, the parties can decide that even though they are separated, they still want to live in the same house due to economic reasons or because of children. In that case, they can determine how the household will be run, how much alimony is to be paid in lieu of what would be spousal support, what visitation will occur, and how debts will be paid. Additionally, there are numerous other issues which may be laid out in greater detail than Virginia law requires for support or property division. Because these documents are generally more detailed, a lawyer can be very helpful. A lawyer can provide interested parties with lists of what should be included in the document and how the issues are generally divided in a divorce action to provide a neutral starting point from which to begin the conversation. The lawyer can also assist the parties in analyzing complex financial situations or estate issues to determine the best possible approach to them which provides for the needs of the family as a whole. Finally, the lawyer can be helpful in drafting the document itself to be certain it is written in a way that is legally binding and does not violate any Virginia statutes. At times, parties may need more than one meeting to decide all the issues that they buy into the Separation Agreement. If the parties cannot agree on how to handle certain areas, many separation documents have a clause explaining the steps the parties will each take to obtain a decision on that issue, including whether it will be done by a private mediation, by having a lawyer create a list of what a Judge would do, or a combination of the two. As a result, the absence of agreement on an issue should not prevent the parties from signing the other parts of the document and continuing their lives outside of court. Additionally, the lack of agreement on the finality of each issue opens the door for the parties to return to a mediation and re-open the issues later if their circumstances change, they feel they can agree more fairly on those issues, or if one party is just being unreasonable. For the marital agreement to have any force, it must be implemented. However, if the parties should break down negotiating the agreement and return to court to litigate their issues, this should not prevent them from signing the separation agreement. The mediation may or may not be usable in Court; however, if it is not, a complete picture of the parties may make it easier for a Judge to make a decision on issues that were discussed even if they were not finalized and will not be usable in Court.
Enforcement Through the Court Process of Separation Agreements
The enforcement of a separation agreement is recognized under Virginia law. A separation agreement is a contract, and Virginia courts have the authority to enforce separation agreements through contract principles as set forth in Virginia case law. The court, (or the parties) may incorporate the separation agreement into the decree of divorce, thereby making the separation agreement an order of the court.
It is important to note that property rights created by the separation agreement, such as spousal support, child support, and the division of property, are subject to modification and/or enforcement provisions provided for under the Code of Virginia. A separation agreement resists enforcement in one specific way under the Code of Virginia. Specifically § 20-109 of the Code of Virginia states that "In any proceeding for divorce … or annulment where a voluntary separation agreement has been entered into … ( … the agreement may be incorporated into the decree of divorce …) … the court may not order the parties as a part of any agreement … to abide by the terms of any such agreement to the extent that the provisions of the agreement provide of their own force for the final disposition of any matter pertinent to such proceeding, including matters of … support …"
This ‘reservation of power’ prevents the court from enforcing the separation agreement to the extent that the agreement provides for final disposition of the issues of divorce, annulment, support, etc . when the action has already been heard and decided by the court. It does not prevent enforcement of the agreement with respect to interim proceedings such as spousal support pendente lite, child support pendente lite, use and possession of marital property pending divorce, pendente lite counsel fees, and no fly provisions.
If a party violates a provision of the separation agreement that may not be incorporated into the decree of divorce, the violation must be addressed by the court within the context of the entire proceedings for divorce, etc. As a practical matter, if the court has not yet heard the case, the non-compliance with the Agreement may be postponed pending the outcome of the action. If the violation is one that must be addressed by the court, a motion for contempt should be filed with the court in sufficient time to be heard prior to the final hearing or in sufficient time to be heard on the same day as the final hearing.
Nine Common Errors in Creating a Separation Agreement
Common mistakes when entering into a legal separation agreement in Virginia are quite common. Here are some to avoid:
- Entering into an agreement without first exploring whether the marriage can be saved. Ideally, you should attempt marriage counseling to determine whether the issues is insurmountable. You may find that a short break and some professional help will salvage the marriage.
- Not communicating completely and being honest with one another. Lack of communication is often the primary reason marriages fail. If you don’t communicate well with your spouse prior to entering a separation agreement, how will you when preparing for divorce? Be sure to include all assets and debts in your separation agreement. If you don’t, you risk a judge telling you that you have to litigate over those issues. Don’t take the risk.
- Failing to read the agreement carefully before signing it. When terms of the agreement are not fully understood, contact your attorney. Do not enter into an agreement blindly. You are expected to be responsible for understanding the terms and conditions.
- Ignoring a mutual agreement. If, as a couple, you decide on something (for example, who gets the dog), put it in writing. Pursue the matter and get it in the agreement. Do not ignore a verifiable agreement because you may not be required to pay or provide alimony. It is better to have it in the agreement than to attempt to prove what you agreed to later.
- Only working with a lawyer and not also with a financial planner. Legal and financial separation matters are very closely intertwined. It is best to hire both professionals as early as possible. Waiting until later can only add more stress. With a lawyer and a financial planner working together, you can create a detailed settlement contract that covers your needs and requirements. It may even eliminate the need for litigation.
Additional Questions in Virginia Legal Separation
Q: Is there a form for a legal separation agreement?
A: There is no requirement that a separation agreement be in writing; however, after two years of separation, you can get a "no-fault divorce" under Virginia Code § 20-91. To obtain that divorce, you need to have filed that separation agreement with the court, so it’s smart to have separation agreements in writing from the start.
Q: How long do we need to be separated to file for divorce?
A: At least one year. If there are no children born of the marriage, the parties can qualify for a divorce after six months of separation.
Q: Why bother with a legal separation agreement if it’s not a requirement to get a divorce?
A: A legal separation agreement may govern certain practice areas that are not necessarily part of one’s "divorce," including spousal support, division of bank accounts and division of retirement funds (these are generally considered to be part of the "equitable distribution" process). Further, many people have strong religious or personal reasons for not wanting to file for divorce. Thus, they might choose to remain married from a technical sense , although they are living separate and apart, with the terms of their separation documented in a separation agreement. It would also be quite common for two mid- to long-term marriages to involve a separation of at least a year or two, as that often makes stronger financial sense from the perspective of taxes, asset values, etc.
Q: Does a legal separation agreement have to be documented with the circuit court? What happens if a party fails to comply with the terms of the separation agreement?
A: Separation agreements precede divorce; they are not filed with the court. It is not uncommon for a separation agreement to contain terms that will only come into play upon filing for divorce. Once the parties actually file for divorce, they will generally file the separation agreement with the court, and that becomes part of the divorce settlement, which will be incorporated into the final decree of divorce. Courts do not enforce separation agreements; a party typically enters an agreement with the understanding that they can’t rely on a court to enforce it, and they are signing the deal between themselves.