What is a Separation Agreement?
A Separation Agreement is an agreement with a future date of effectiveness – the "effective date" is the date of separation or some other date in the future. The agreement becomes what is known as a "post-nuptial" agreement. It is a contract between husband and wife that enumerates their rights and obligations – as individuals and to one another. Specifically, it generally sets out each party’s debts and assets. The parties may also negotiate provisions regarding spousal support/alimony, custody and visitation, child support, real estate, personal property, retirement, health insurance, and life insurance.
Couples generally enter into separation agreements when they no longer want to live together but do not want to experience the full legal separation that comes with a divorce. The parties in these agreements usually occupy separate living spaces but have not begun the process of divorcing. Indeed , there is a waiting period (a "no-fault" period) in Virginia whereby a couple must live separate and apart for a year before becoming eligible to file for a divorce. Even couples have filed for divorce and are just at the beginning stages of the process, they can still negotiate and draft a separation agreement. The agreement is effective on the date that the parties physically separate. If the parties have already separated, the provisions of the agreement begin on the effective date. For some, the "effective date" is the actual date of separation; for others, it is a date months in the future. The latter scenario is usually more common. That way, the parties have time to address many of the issues mentioned above. Depending on the complexity of the issues, it could take the parties months to reach an agreement.
Advantages of a Free Separation Agreement
The advantages of a free separation agreement are clear cut in the state of Virginia. In addition to the obvious savings, both time and money, it permits all issues to be negotiated and simplified. When everything you need is contained in one easy to read, simple to navigate document you can both clearly see what the other person needs and wants. You can both move forward toward the finalization of your divorce much more quickly, saving both of you time and money. It is easier to walk away with a simplified agreement that has everything on it as opposed to not being able to finalize your divorce because an issue was overlooked or ignored.
With free separation agreement templates, every aspect of your divorce is covered. From how you are going to handle child custody issues to spousal support (alimony) each point is included and discussed before the final agreement is established. It allows you to build a stronger foundation for a life apart from one another and helps both of you to move on from the marriage.
How to Secure a Free Separation Agreement in Virginia
To obtain a free separation agreement in Virginia you can look at a few different places. First, I always recommend my clients start their search for a free separation agreement using the internet. Doing a quick Google search will provide some quick results for Virginia separation agreements. However, as these Virginia separation agreement templates are draft agreements, your best approach is to go over them with an experienced Virginia divorce attorney.
If you’re eligible for legal aid you can check your local legal aid website, as well as statewide sites such as Legal Aid Works and Chesapeake Legal Aid Society, both of which are great resources that specialize in providing help and information for Virginia residents looking for legal assistance.
Another potential resource to obtain a free separation agreement could be your local courthouse. Some courts have public law libraries or programs to help self-represented litigants. Although you may have to pay a small fee to have access to this program or library, these are potentially great sources of help.
Also worth checking out are local self-help centers, like the ones found in Prince William County and Chesterfield County.
A separation agreement is a type of contract, and as such a public law library or public law self-help center may have some examples of separation agreements, as well as potentially some paid legal counsel who can review a separation agreement that you may have drafted.
When reviewing online resources for your Virginia separation agreement, be sure you pick one that mentions it’s for separation agreements in the state of Virginia. Some times sites will mention separation agreements generally, without specifying a particular state. Often, these two types of separation agreements are incredibly different and using the wrong one can be disastrous and could lead to a judge denying the contract during your divorce. I’ve had clients come to me after having used the wrong separation agreement, and they were getting divorced in a matter of days. Make sure you get a Virginia separation agreement form. And while it may be difficult to get one that’s free, or at least cheap, find one by a family law attorney for Virginia.
Virginia Legal Obligations for Separation Agreements
Virginia employs a one-year wait requirement before divorce is finalized and separation agreements cannot be used to finalize the divorce until that date has passed. The exception to that is if the parties have signed what is known as a "separation agreement" and filed it with the court after 6 months have passed from the date of separation. This separation agreement becomes part of a court order which finalizes the divorce and all issues concerning the parties including support and property settlement issues.
Assuming that a judicial decree of divorce has not been entered, in Virginia: (1) a separation agreement must "be in writing and signed by the party to be charged therewith," and (2) it "must be acknowledged by the party to be charged … before an officer authorized to administer oaths . " Va.Code Ann. ยง 20-155 (1994). Thus, following these requirements, only one party must sign. The other requirement is that it be acknowledged before an official authorized to certify oaths. This is usually done by having a "notarial" seal affixed to it.
Section 20-155 also gives the court the authority to compel compliance with the agreement through the legal system. It simply states that such an agreement "may be made an order of the court" and that once it is, the court may enforce the terms of the agreement contained in the order. This simply means that the court will issue a show cause, or legal document requesting information from the party, to show why he or she has failed to abide by the order.
Pitfalls of Do-It-Yourself Separation Agreements
While self-representation can save costs up front, the free separation agreement that you create yourself could be the most expensive document you ever create. The following are common mistakes we have seen in reviewing separation agreements created by non-lawyers.
There is no reason to guess when the law is clear as to how retirement benefits should be divided. If you and your spouse have retirement plans, but you fail to state how those plans will be divided in the future, you are leaving to chance how future payments will be made. In many cases, if the retirement plan is a pension, the last spouse to die will get to choose how the benefit is paid. This is not what most clients want.
Businesses are another common source of future income. You might think that the business is worth some amount today. However, your spouse might be entitled to a share of all future income above that today value. You need to carefully consider the future if you plan to resolve your case without the input of experts.
In Virginia, the window to appeal a bad trial court decision is 30 days. Even if the judge makes a mistake, you have up to 30 days to file an appeal with the higher court. If you settle your case without reserving the right to appeal, there is nothing you can do about the mistaken ruling of the judge. You have waived your right to appeal it.
Even if you decide to settle your case without going to court, you should consult with an attorney who regularly handles this type of matter. Your prospect of an unfavorable outcome at court is not sufficient to justify making a bad deal. It might be better to go to court than to settle for a bad deal.
Many jurisdictions have court rules that dictate the form and content of separation agreements. If you have left out a piece of required content, the judge may simply refuse to sign your final divorce decree until the errors are corrected. This takes up time and increases the cost of your case.
When to Retain Counsel
While using a free separation agreement as a starting point makes financial sense, at some point it pays to have the agreement reviewed by an experienced lawyer. Divorce law is complicated, and often there are issues that a simple form cannot address. If a couple has a complicated marital property situation, a separation agreement may not be enough. A couple with multiple homes, stock options, or a closely held business needs the help of a qualified divorce attorney to make sure their property is equitably divided.
Child custody issues, particularly with a situation involving multiple children can also raise tricky issues that a "free" form simply cannot address. A comprehensive parenting plan requires careful drafting and attention to detail . While a do-it-yourself template may work for a simple case, an agreement involving children will not be robust enough to account for the myriad of issues that require attention.
If there is a significant disparity in income between spouses, child support and spousal support can become complicated. While there are worksheets to determine what a paying spouse must pay, there is often more to support than just the numbers. Tax ramifications, geographic relocation, the way income is derived, and other expenses can all play a factor in how support is structured. A lawyer can make the recommendations that best fit the family’s situation.
The decision to hire an attorney really comes down to how complicated the circumstances of an individual’s situation are. The more free tools a couple has used to come up with a separation agreement, the more likely the need to hire a lawyer.