An Introduction to a Separation Agreement
A separation agreement is a written, binding contract entered into by spouses who are married to each other. The separation agreement itself is not the document that creates the legal separation but instead is an agreement that outlines how assets and debts will be fairly divided between the spouses when the relationship ends. Parties who enter into a separation agreement often factor it into a final divorce decree, but that is not always the case. For instance, many clients who separate but do not continue their relationship choose to follow through with the separation agreement terms until the party who is not supporting the family is able to get back on his or her feet. It is meant to provide legal protections for parties in a similar situation.
The purpose of a separation agreement in Virginia, as with most states, is to formalize what the court would have ordered in terms of asset division, debt division, and spousal support to prevent the need for a court order to do so . The law generally requires separations by a period of 6 months to a year in many states so that parties give sufficient time for the parties to consider the pros and cons of divorce. By signing into a legal separation agreement, however, the parties provide a shorter window of separation that still legally protects each party.
In Virginia, there are several key differences between separation agreements and other legal documents. Unlike a divorce decree or other court documents, a separation agreement is not necessarily binding on its own. Instead, it is a contract that does not have to be included in the final court order if both parties agree otherwise. When this is the case, however, the court will always rely on the order rather than the agreement. Further, the separation agreement only becomes legally binding when both parties sign the contract.
General Requirements under Virginia Law
Virginia law recognizes the validity of separation agreements. However, only an agreement that is reduced to writing, dated and signed by both parties will be enforced. Moreover, if your separation agreement contains an agreement for a worldwide division of property, it may not be valid under Virginia law. That type of agreement cannot be specifically enforced. In Cohn v. Cohn, 30 Va. App. 720, 519 S.E.2d 386 (1999), the Court of Appeals of Virginia addressed whether a separation agreement that provided for a worldwide division of property was a valid conveyance under Virginia law. The court held that since the Uniform Acts do not apply to transfers of real property between spouses, agreements providing for the division of real property must be under seal. "The critical point…is that the Uniform Acts do not apply to transfers of real property between spouses. Such transfers occur outside of the uniform acts." Id. at 725, 519 S.E.2d at 389.
Advantages of Reaching A Separation Agreement
Separation agreements provide a structure to the otherwise very amorphous period of separation. Having specific terms and a structured process can help avoid conflict, saving time and money down the road. A separation agreement puts controls around the property and debts you want to be divided in a certain way. It also helps you set up a schedule for supporting your spouse and/or your children, and sets expectations for issues of custody and visitation.
Agreements are powerful and often control the outcome in subsequent litigation. Even still, there is often value in a separation agreement even if it is intended to be a temporary arrangement. For example, your spouse may not want to leave the house during the separation period. You would like to have the house to yourself but also want to ensure that it is properly maintained (i.e. lawn care, mail pick-up, etc.). A separation agreement could be a vehicle for figuring out how to deal with this process. It is your opportunity to agree on requirements.
In and of itself a separation agreement may not be enforceable as a contract. However, the agreement is often incorporated into the final decree and therefore, in effect, becomes enforceable. For example, you may provide certain information to the other spouse prior to the exchange of financial documents as outlined in the agreement. If you fail to provide that information you are in breach of the agreement and the court may take that into consideration in later stages of the litigation. It is always a good practicing to back-up the agreement with the order, providing for a way to enforce the agreement in the future.
Common Issues Resolved by a Separation Agreement
Separation agreements can cover a wide range of issues, but there are some that we most often commonly see. The most common issue addressed in separation agreements is property. Virginia is an equitable distribution state, and all property acquired during the marriage, except for what is called separate property, is subject to division between the parties. A spouse can retain control over his or her separate property. You can voluntarily separate the property through agreement, but if you do not, upon divorce, the judge will be required to divide the property among the parties pursuant to the law. Generally, the most commonly divided properties are the marital home and retirement accounts.
Another common issue addressed in a separation agreement is child custody. Custody is one of the most common issues in any divorce, especially if the parties have children. Custody can be complicated because it includes where the child will live primarily (legal custody) and where he or she will spend time with the other parent (physical custody). In Virginia, there are three different types of custody arrangements a judge will award: sole custody, split custody and joint custody. Sole custody means one parent has the primary legal authority for better decisions related to the child, such as education, religion and medical care. Split custody is when each parent has custody of at least one child from the relationship. Joint custody means that each parent has equal decision-making authority for the child and share the parenting responsibilities.
In addition to custody, a separation agreement will also address child visitation. There is also a third component to custody arrangements that provisions for child support. Child support is always based on the best interest of the child. The amount of support depends on the combined gross income of both parents, the number of children to be supported and living expenses for each child. Virginia’s Child Support Guidelines allow a court to deviate up or down from this amount for several reasons, including special needs of the child or an above average gross income of the parties.
Another issue that a separation agreement will address is spousal support. Spousal support, once called alimony, is paid from one spouse to another after a divorce for the purpose of helping the spouse maintain a standard of living similar to that which was enjoyed during the marriage. Virginia considers several factors when determining the correct amount of spousal support, including the age and health of the spouses, the financial resources of the spouses, the education of the spouses, the desirable standard of living during the marriage, the contribution to the well-being of the family (including homemaking) and the duration of the marriage.
A separation agreement will also address how debt is handled between the parties. Courts do not generally look to divide the marital estate by debt, but through agreement, parties can be flexible on how debt will be handled. This disbursement of debt is particularly important when two people are jointly responsible on credit cards, loans and mortgages.
Somewhat less common separation agreements address how the parties will handle their health care, including the continuation of medical insurance. However, in the absence of an agreement, Virginia laws are clear on how insurance policies will be developed.
Additional issues addressed in separation agreements generally include provisions for tax refunds and dependency exemptions.
How to Prepare a Separation Agreement
Admittedly, it is rare that I am asked to draft a separation agreement for my clients unless that agreement is part and parcel to a larger negotiated settlement. I will not shy away from telling you the reason for that — it isn’t that the drafting of a separation agreement is difficult, but because of the time necessary. And if you are represented by a lawyer, your billable cost associated with drafting a separation agreement is probably better spent elsewhere (such as negotiating).
But that said, I think it is important to understand the steps at play in drafting a separation agreement. First, there is nothing that says you will sit down with your spouse and negotiate the form terms of a separation agreement. In fact, in some cases, the first draft of the document comes not from the pen of an attorney, but from a mediator or even one of the parties through a specially created outline. But whether the document is drafted by an attorney or others, one of the biggest things to keep in mind in drafting a separation agreement is that the agreement should be a true statement of both parties’ "wants" — I strongly recommend that separation agreements be drafted only after agreement in principle has been reached on all terms.
Once the terms are settled upon, the first step in drafting is the most essential in making sure that no grounds exist for invalidating the final agreement entered later — namely , the requirement that each party be represented by a lawyer. I am happy to take on the job of drafting the final agreement once all points have been settled. But I cannot tell you that I have ever seen a situation where it works both ways. If you and your spouse want to enter an agreement and have yet to hire a lawyer, I would strongly advise that you get independent counsel to review the document prior to signature (and, based on the negotiations, have the final draft prepared by counsel).
Once the terms are settled upon, and the requisite period of independent counsel has passed, the document is drafted. Once drafted, review it carefully (it seems strange to say that this is the phase during which you should read it in full, but I have had clients who have skimmed over the document and missed language by the end of the review). Dispute over the language of the document is actually fairly rare (or at least it has been for me, knock on wood), and usually this is simply a matter of changing up a word or two. Once all parties have reviewed each page and made the necessary changes, the document is ready to be signed.
The final step in the process is one of the more crucial ones — the witnessing and notarization of the document. In the presence of the witnesses, the parties must have their signatures notarized. Many lawyers don’t require the extra step of having the document prepared in triplicate (as sometimes is done with contracts), but this is an option that I offer to my clients whenever possible.
And that’s it. Pending a final consultation prior to signature, my work is done once the document is drafted and notarized.
How to Enforce or Modify a Separation Agreement
Modification of Separation Agreements
Once a separation, such as a parenting plan, is approved by the court, then it is incorporated into a court order. If any party fails to comply with the terms of that order, then it can be enforced through the contempt powers of the court. See, e.g., Code § 20-108.1.
If, thereafter, circumstances change and a party seeks modification of a provision of that agreement or of an order, the court will analyze the matter under the rubric of a material change in circumstances:
As a general rule, Courts may not modify that which has been made final, absent a showing of a material change in circumstances.
Dickenson v. Dickenson, 29 Va. App. 159, 164 (Va. Ct. App. 1999) (citing Bailey v. McCann, 10 Va. (1 Bagge) 325, 329 (Virginia Generl Court 1858)).
The Virginia Court of Appeals has held that "a party seeking modification of the amount to be paid as child or spousal support must demonstrate a material change in circumstances since the last order establishing or enforcing the provision." Bodnar v. Bodnar, 3 Va. App. 382, 384 (Va. Ct. App. 1986) (citing Carter v. Carter, 19 Va. App. 390, 390-391 (Va. Ct. App. 1994); Ellis v. Ellis, 21 Va. App. 191, 197 (Va. Ct. App. 1995)).
Note, however, that agreements regarding custody of and/or visitation with children are subject to review and modification:
Under [Virginia code section 20-108] the trial court is authorized to review and, if appropriate, modify prior domestic relations orders or agreements concerning child custody and visitation. The statute provides that the court may do so only ‘as the circumstances of the parents and the child may make proper,’ Code § 20-108, but the clear implication is that the court may revise the provisions of prior orders and agreements even in the absence of any change in the parents’ or child’s circumstances.
Kelley v. Butler, 31 Va. App. 146, 161 (Va. Ct.App. 2000) (en banc) (quoting Gillespie v. Gillespie, 212 Va. 583, 586 (1951)) (emphasis in original).
The parent’s best interests are to be determined "in accordance with the facts of each case." Garska v. Harris, 228 Va. 707, 709 (1985). Again, the burden is on the party seeking the modification.
To sustain his burden, the movant must demonstrate that there is:
[t]he showing of changed circumstances needed to modify the final custody order is not limited to events that have occurred after the entry of the order. Because a child is continuously changing, what may have been in the best interests of the child when the original custody award was made may no longer be so at the time of the modification hearing.
King v. King, 6 Va. App. 106, 109 (Va. Ct. App. 1988); see also Morris v. Morris, 26 Va. App. 469, 473 (Va. Ct. App. 1998).
Frequently Asked Questions
Q: If your spouse is refusing to leave the home, do you have to wait to get a separation agreement until after you’ve moved out of the house?
A: No. You do not have to wait until you have moved out of the house to get a Separation Agreement. You can get a Separation Agreement effective the date you and your spouse separated even if you have stayed in the house together.
Q: After you and your spouse have separated, are you still responsible for your spouse’s debts if they are living in the same house with you?
A: Yes. Virginia law says that a husband and wife are generally jointly and equally responsible for each other’s debts even after separating.
Q: "How much spousal support am I entitled to receive?"
A: Virginia law says that there is no formula or calculator for calculating spousal support. But in Virginia, there are several factors judges consider when deciding whether to award spousal support and in what amount. If you and your spouse have reached an agreement on spousal support, those factors will not apply. But you should at least understand how a judge would answer those questions if there were no agreement.
Q: "Is spousal support tax-deductible?"
A: Spousal support is tax-deductible for the spouse who pays it, and it is taxable income to the spouse who receives it .
Q: Is a spouse responsible for payment of credit card debt during the marriage or only those credit cards on which you are a co-signer or account holder?
A: In general, both spouses are equally responsible for payment of credit card debt accumulated during the marriage, though a judge probably would divide the debt equitably between what are known as marital and non-marital debts.
Q: "Can I change my mind later if I don’t like the separation agreement?"
A: No, you cannot change your mind on a Separation Agreement. A Separation Agreement is a legally-binding contract, and the parties can only agree to amend or rescind the contract.
Q: "What is the typical length of time to get a separation agreement?"
A: The length of time to get a separation agreement really depends upon how complicated your particular matter may be, but we have often prepared separation agreements for clients in one day. However, the length of time, of course, also depends upon the parties themselves to agree on the terms.
Q: "Will a separation agreement work if my spouse does not sign it?"
A: No, a separation agreement will not be effective unless both parties sign it.