Information About Separation under VA law.
FAQs on Separation
***The articles on this site are not intended to give legal advice and do not purport to do so. Our intention is to provide general information pertaining to legal topics. If you believe that you might not be lawfully married, or if you are considering separation or believe that your spouse is considering it, you should seek a confidential consultation with a good experienced divorce lawyer.***
What is a separation agreement?
A separation agreement or property settlement agreement, also called a stipulation agreement, is a contract between a husband and wife in which rights, duties and responsibilities arising out of the marital relationship are settled and compromised between the parties. These types of agreements are specifically authorized under Virginia law. Matters addressed in such agreements may include the date of separation, property division, debt division, spousal support, health insurance and expenses, auto insurance, life insurance, litigation costs, divorce costs, child custody, visitation and support, payment of educational expenses, and more...
Why consider a separation agreement?
Separation agreements allow the parties to decide the outcome and in so doing to exercise autonomy and self determination, rather than allowing the court to make decisions for them. Separation agreements allow the parties to negotiate a compromise on the issues that they can live with. Absent agreement of the parties, disputes must be litigated. This makes the divorce proceedings more complex, more lengthy and more expensive. Neither party may be happy with the outcome of litigation. Litigation also takes an emotional toll on the parties. This is especially true, if there are children. Finally, parties have more flexibility in designing agreements to suit themselves than the courts have in fashioning a remedy for the couple. Jurisdiction ancillary to divorce is limited to what is stated in the statutes.
Do we have to have an agreement? Can we just separate?
No, you do not have to have an agreement. Yes, you can separate without an agreement. Not having an agreement does not make you "illegally" separated. Your situation may be a simple one with little to haggle over. However, there are risks in separating without having a written signed agreement. These risks include legal risks (especially for the spouse moving away from the marital home) and legal consequences to separating without having reached an agreement on the issues. The fact of separation itself changes the status quo and may shift the balance of power or leverage in the negotiation of the issues which remain to be resolved. Finally, it should be remembered that the separation agreement also serves a valid function of representing your legal status as separated. If there is no agreement and no divorce, there is no document to show that you are in fact separated from your spouse.
However, if you intend to pursue a no fault divorce after six months' separation, instead of waiting a full year, you will need a signed written agreement. Without such an agreement, you must wait a full year before filing for divorce.
What if we have a pre-nup? Do we still need to have a separation agreement?
Yes. Because the pre-nup or pre-marital agreement was signed before the marriage, it is not sufficient to serve as a basis for the six month no fault divorce. You must sign another agreement reflecting your intent to remain apart permanently. The separation agreement may ratify and reaffirm the terms in your original agreement. In fact, you should be careful not to inadvertently change those terms in signing a separation agreement, unless you intend to change them. If you have a pre-nup in place and are considering a separation, you should consult your attorney for advice before you sign anything else.
If you do not want to sign another agreement, you do not have to; it just means you will have to wait a full year before filing for divorce.
What if we can't agree on our own? Is there another alternative?
Yes, you can use mediation or arbitration. Mediation is a process by which a trained mediator facilitates the couple in defining and resolving the issues. The trained experienced mediator helps the couple to find a middle ground and compromise that each can live with. Arbitration is a more formal process by which the couple agree to submit the dispute to a third party or even a panel of third parties who render a binding decision.
Does having a separation agreement make it easier to get a divorce?
Yes. Generally such agreements leave nothing to be decided by a court, except the matter of the divorce itself. Even if the agreement does not settle all the issues, it will still simplify the divorce by eliminating those issues which have been resolved. If there are no minor children, having a written agreement settling property, debt and support issues shortens the separation period for no-fault divorce from one year to six months. If you do not want a divorce, you should think long and hard before you sign a separation agreement, because it is usually the first step down the road to divorce. On the other hand, even if you do not want a divorce, there may be cogent reasons to sign an agreement. You should seek advice from an experienced divorce attorney, who can guide you through the decisions you are facing.
What if we decide to reconcile?
You may reconcile your marriage at any time, prior to entry of a final decree of divorce from the bond of matrimony. However, you may want legal advice as to how to rescind the separation agreement. Some separation agreements survive reconciliation and some do not. It may also be prudent to consider counseling to deal with the problems that caused or lead to the separation, because unless the problem is resolved, it will surface again. Finally, it may also be wise to consider a written "reconciliation agreement." It is prudent to talk to your lawyer before resuming cohabitation, if you have gone to the trouble and expense of separating and having a separation agreement drawn up.
How do we go about getting an agreement?
First you need to identify and determine the issues to be resolved.You should seek legal advice early; your attorney can assist you in identifying and determining the issues to be included in the agreement. Among the areas to consider for inclusion are spousal support, bank accounts, debt repayment, disposition of the marital home, disposition of time shares, disposition of burial plots, disposition of vacation home, disposition of vehicles, division of thrift savings, division of military retired pay, pension/retirement benefits, death benefits, life insurance, child custody/visitation and support, health insurance coverage for the child(ren) (and/or dependent spouse). payment of college or trade school expenses for the child(ren). There could be other issues depending upon your circumstances.
Once you have identified potential issues, set a meeting with your spouse. Try to reach an agreement on the issues. As you agree, write down the terms of your agreement. If possible, sign it and have your spouse sign it. Call your attorney for an appointment to review the terms you have agreed upon with your spouse and to discuss whether there are further matters you need to discuss with your spouse. If appropriate, your attorney can take your notes and memorandum of agreement signed by you and your spouse and draft a more formal separation agreement.
Do you have to have an attorney draw up the agreement?
No, not necessarily. You can draw up your own contract, provided you know what to say and how to say it. Of course you can perform surgery on yourself, too, but wisdom lies in knowing the difference between removing a splinter from your finger and removing cataracts from your eyes. The safest thing to do is to at least talk to a lawyer before you do something that will bind you for the rest of your life.
We have been helping people navigate the stormy waters of separation and divorce for over 30 years. If you are reading these FAQs on separation, Attorney Virginia Dante Perry has written two special reports that you need to read, Why You Need a Good Divorce Lawyer and How to Choose a Good Divorce Lawyer. These special reports are available to you free of charge, just for visiting our website. If you are facing separation and divorce, you cannot afford NOT to read these FREE special reports. To order your free special reports, click here now. Or you can go to the library page and use the order button.
What is a legal separation?
A legal separation is a proceeding allowed in some states whereby a court orders the parties to live apart without divorcing. There is no proceeding in Virginia by that name. The term "legally separated" may mean one of two things in Virginia; either the parties have a formal written separation agreement or they have a bed and board divorce decree. The divorce from bed and board does not fully dissolve the marriage bond. See the FAQs on divorce elsewhere on this site.
If after reading this information, you would like more information or legal advice, CALL (804) 520-7060 for a CONFIDENTIAL APPOINTMENT with Attorney Virginia Perry, an experienced divorce lawyer. Or you may click here to contact this office and someone will get back to you.
The articles on this site are not intended to give legal advice and do not purport to do so. Our intention is to provide general information pertaining to legal topics. If you are considering separation or believe that your spouse is considering it, you should seek a confidential consultation with a good divorce lawyer.
Copyright (c) 2007 by Perry Law Group, PC. Revised 2007. All rights reserved. You may reproduce the material on this website for your own personal use and for non-commercial distribution, provided you include this statement: This copyright material is taken from the VA Law Talk website and is reproduced with the permission of Perry Law Group, PC.