What is a VA Separation Agreement?
In Virginia, a separation agreement is a written document mutually entered into by a husband and a wife outlining the manner in which certain issues will be resolved in the event they ever proceed to divorce. Although the age of most of these agreements is 15-20 years, and up until recently, we have seen the prenuptial agreement become a fixture that is almost standard fare . A separation agreement is a contract amongst the parties that lays out the various rights, responsibilities and obligations of the parties concerning a variety of issues including, but not limited to: custody and visitation, child support, spousal support, the division of property and debts, health insurance, life insurance, retirement, estate planning as well as other miscellaneous issues. A separation agreement typically does not become effective until after the entry of a final judgment of divorce at which point the contents of the agreement become the terms of the divorce decree.
Essential Elements of a VA Separation Agreement
A Virginia separation agreement is a legally binding contract that outlines the terms agreed upon between two spouses or partners with a marriage-like relationship. Key issues such as property division, spousal support, child support, the custody of children and visitation are often addressed. Separation agreements are very common before parties go through litigation or a contested trial. The purpose is to save expenses, both financial and emotional.
Property division can involve any type of asset, including debt, real estate, bank accounts, pension plans and household goods. An important consideration in property division is whether a party has a vested interest, or has acquired an equitable distribution claim, to the marital property. For example, a retirement benefit may be shared by the parties even if only one of them contributed to it during the marriage. Another example would be that a spouse who owned a business prior to marriage might recover some of its appreciated value, if not all.
Unless the parties require a specific amount be paid, most separation agreements will simply say that the wife will pay the husband a certain percentage of a bank account, and vice versa. For retirement benefits, Virginia law allows for a Qualified Domestic Relations Order ("QDRO"). A QDRO is a court order that recognizes the right of a spouse to receive a share of a retirement benefit.
Depending on the parties’ incomes and the lesser of the two spouses or partners’ needs, spousal maintenance may or may not be required. It happens quite often that one party has foregone a career to stay home and take care of a family, while the other obtains higher education, works and builds his or her career. A separation agreement will usually provide for some amount in this regard. When there are minor children involved, support will certainly be expected by the less well-off party.
One difficult decision many parents have to make is whether or not to move their children out of the Commonwealth, either temporarily or permanently. Perhaps a job offer or a relationship awaits in another state. Although some judges allow a custodial parent to relocate with a child, others do not. Obtaining court approval will certainly be costly and uncertain. In order to gain at least temporary relief, many parents seek to resolve the issue in a separation agreement. Such agreement will also provide for visitation.
A separation agreement will also include various other restrictions: confidentiality clauses, waiver of spousal rights, and waiver of conflict are some examples of what is typically included. As long as a separation agreement is fair and rational, it likely will be upheld by a court.
Legal Mandates for VA Separation Agreements
From a legal perspective, separation agreements are contracts. They are subject to the same rules and requirements as any other contract. For the purpose of a valid separation agreement, a spouse must be of sufficient mental capacity to sign the contract and be of at least 18 years of age.
The Virginia Code does not require that a separation agreement be in writing; however, divorce attorneys and judges do. If the separation agreement is written by either party, it must be clear and unambiguous in its terms to be enforced by the court. If the parties handwrite their separation agreement, this may not be sufficient for a court to enforce the agreement. Any typed or word-processed agreement using a template is sufficient in Virginia to enforce the terms of the divorce. The separation agreement must identify you and your spouse and the date it was signed. Both spouses must sign the agreement. The signatures of both parties must be notarized or made before a court using court-approved methods for signing a legal agreement.
Separation vs. Divorce in VA
Although the terms "separation" and "divorce" are sometimes used interchangeably, they have different legal meanings when it comes to Virginia law. To be legally separated in Virginia, there must be a complete and independent abandonment of the marital rights of one spouse by the other, with the intent of ending the marriage. The parties need not have filed for divorce to be legally separated. However, a couple may still enter into a separation agreement even if they are not legally separated, as long as they are separated in fact, i.e., living apart with no intention to continue in a relationship.
A court may grant an absolute divorce to either spouse on the ground that the couple has been living separate and apart for at least one year, or at least six months if they have no children and both parties voluntarily sign and file the separation agreement with the court.
NRS mediators can help you and your spouse negotiate a separation agreement during this time of uncertainty, giving you peace of mind knowing that all divorce-related matters have already been worked out before you file.
Preparing a VA Separation Agreement
A separation agreement must be in writing, signed by both spouses, and notarized. While some couples handle this formality themselves, a written agreement is a complex arrangement of promises. Formal legal advice regarding the rights and consequences of an agreement are in order to avoid costly litigation over its terms later.
Agreements may also be prepared by the drafting spouse without the benefit of counsel. Without assistance, people often make poor choices and give away more rights than they need to or fail to formalize the true agreement . Those who attempt to negotiate on their own run a serious risk of having an enforceable agreement which presents an inequitable division of property and/or support.
We always advise a spouse to obtain independent legal advice as to the impact of any agreement. Counsel can help avoid harsh surprises that often accompany "do it yourself" agreements. Finally, the agreement will need to be cooperatively appended to a grounds divorce in a subsequent court filing.
Enforcing a VA Separation Agreement
While keeping the terms of your separation agreement to yourselves, the typical agreement between a husband and wife in Virginia is considered by law to be a binding and enforceable contract. However, it does not have the legal effect of a court order until it is approved by the court and entered in the court’s records: It has been the practice that the agreement of the parties recognizing the divorce was irretrievably broken with consideration and release duly executed and proven to the court is sufficient to allow the court to incorporate the said agreement into the decree and a straight order for payment of support or provisions concerning custody to be entered. Hodge v. Hodge, Supreme Court of Virginia, 1977
The potential consequences for violating the terms of such an agreement can be significant. Child support payments due under the terms of a valid separation agreement can be collected through a garnishment of the offending party’s income if he or she fails to abide by the agreement and refuses to voluntarily rectify the situation. If the offending party is required to pay child support through the Virginia Department of Social Services (DSS), DSS can freeze the person’s bank account if the regularly scheduled payments are not made on time. This process typically starts with DSS sending the parent a letter demanding payment of the overdue portion of the support. If that demand is not complied with, the parent is given an opportunity to appear in court before a hearing officer to review the situation and determine whether or not the child support payments have been made.
Amending a VA Separation Agreement
Early in my career, I had a client ask me why I was telling him that some separation agreements include a provision that the agreement could not be modified. He wasn’t a lawyer and could not understand why his spouse would agree to something that she could not get out of if she later changed her mind. My answer was simple – it is easier to negotiate a favorable settlement if there is no easy way out later.
Unless your agreement expressly provides otherwise, it may be modified by agreement of the parties or by the court. In a case called McKenzie v. McKenzie, the Virginia Court of Appeals held that a trial court has the discretion to alter a separation agreement if it incorporated a provision allowing it. The court will consider the same factors as if it were modifying a court order, i.e., whether the modification is in the best interests of the child(ren) and whether there has been a material change in circumstances since the court entered the separation agreement of which the parties were aware at the time they entered the agreement. While the court is guided by this information, it is not legally required to modify an agreement, even if a material change of circumstances might be argued.
If an agreement does not provide that it can be modified , then contract law controls. Virginia courts have repeatedly held that agreements that do not provide for modification are contracts and cannot be unilaterally modified. That said, under contract principles, an agreement may be modified by mutual consent of the parties. Practically speaking, if there is no agreement to alter the original terms, there cannot be an alteration of the original terms. Virginia courts have held that:
A settlement agreement entered into by the parties [is] a contract approved by the trial court. Unless the agreement provides for modification or cavilat as there to change the terms, it cannot be modified unilaterally.
Likewise, an incorporated agreement can be considered modifiable by the court (if the agreement so states) to accommodate unforeseen circumstances. In addition, the courts will comment on the validity of the contract itself before modifying its terms. An award of temporary spousal support based on an incorporated premarital agreement was upheld because the court found the agreement supported the award.
The moral of this story – if you want your separation agreement to be modifiable, say so. If you want your agreement to be unmodifiable, also say so. But if you do not, know that the court likely will decline to make any changes to the terms of your agreement even if there is a change in circumstances justifying such a change.