Separation Agreement in Virginia

When we are having a consultation with new clients, it happens that some people ask the question – can I write my own separation agreement in Virginia. In trying to maintain our desire to provide straight forward answers, I will answer like this – yes, you can write your own separation agreement in Virginia. The next question is how do I write my own separation agreement. The following question is (or should be) should I write my own separation agreement in Virginia. Let me try to answer those as well.

First, we need to define what is a separation agreement in Virginia. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.

So when we say that you can write your own separation agreement we are being completely candid. Virginia does not require a formal form or format for a separation agreement. There are very few “magic words” that need to be in a separation agreement for it to be valid. There have been instances where people download “examples” from the Internet and copy that form as a separation agreement (which is a really bad idea since you have no idea who wrote it). There are also people that handwrite their own separation agreement and submit that to the Court for entry with the final Decree of Divorce. This is acceptable as well. If memory serves correctly, I believe that the Virginia Courts have affirmed a separation agreement written on a napkin at dinner. Now I do not suggest that you do this as it may not work and is definitely not the smartest way to draft a separation agreement.

The next question is – should I write my own separation agreement? Again, trying to be as candid as possible my recommendation is as follows – NO you should not write your own separation agreement. Kind of harsh words and, perhaps, a little self-serving since we pay our bills by drafting separation agreements for folks all over Virginia and beyond. Yes you probably should hire an attorney to draft your separation agreement as opposed to leaving it to chance. Again, you do not know who drafted the template, have no clue if it was valid in Court (as there are provisions that the Court cannot enter; that is for another post), nor whether it actually applies or covers the aspects of your case that you want covered.

A separation agreement should be as inclusive as possible. Since the separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be over inclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.

Let me put it another way – if you think that I or almost any lawyer can come in and do your job as well as you without any training or experience except what an Internet search shows, then go for it. That may sound harsh but I firmly believe it – I cannot do your job as well as you can. Lawyers have education, bar exams, Continuing Legal Educations seminars, books written for lawyers, and experience in drafting as well as litigating separation agreements in Virginia. I am not trying to be sarcastic and, to be honest, you are free to go see any lawyer in Virginia to draft your separation agreement. Meaning I am not saying this to try to get you in the door. I firmly believe it. A good, experienced attorney will be able to discuss your particular situation, give you options, answer your questions, and then draft something that accomplishes your goals. We also have to take into consideration which Court you may end up in as different courts treat cases and handle issues differently. It can even vary from judge to judge in the same Courthouse! This is where an experienced lawyer as well as office staff can be of service better than any do-it-yourself website.

Having dealt with these issues for many years an experienced attorney can also help you try to predict variables and problems. This is extremely important because we are talking about your life. An easy example of contemplating a variable is this – a couple wants to get divorced and drafts their own separation agreement; they jointly own a house; they agree that Spouse 1 will either sell the house and split the equity with Spouse 2 or that Spouse 1 will buy out the equity of Spouse 2 and remove Spouse 2’s name from the house. There are three (2) issues that most lay people may not see at first blush. First, what is the timetable? Without one defined it could be twenty (20) days or twenty (20) years before Spouse 1 does what was agreed to in the separation agreement. This leaves Spouse 2 on a mortgage and deed along with the financial obligations that come with home ownership. Second, what is the date of valuation of the house? By this I mean what date does the equity to Spouse 2 become final. Again it could make a huge difference if it is twenty (20) days or twenty (20) years. Third, if Spouse 1 does a refinance how much equity goes to Spouse 2? When a house is sold there are costs involved that come out of the seller’s proceeds or equity. If the home is refinanced the amount needs or should be calculated regarding closing costs so everyone knows how much each person is going to get. Again, this is a barebones and example so please do not take it as legal advice or a tutorial. It is meant to illustrate a point that may not be apparent from “form” or “template”.

Now that you know about whether you can write your own separation agreement you may have another question about whether a separation agreement is required in Virginia. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.

I am not trying to scare you with this post. I am simply trying to answer the question that brought you here – can you write your own separation agreement in Virginia. The short answer still remains yes, however, that does not mean it is a good idea.

The Code of Virginia addresses marital agreements. In case you would like to read the law, here are a couple of links for you. The law allows for parties to enter into marital agreements under Virginia Code Section 20-155. It also allows the Court to incorporate the Agreement into an Order under Virginia Code Section 20-109.1.

I hope that this answers some of your questions at least regarding whether you can write your own separation agreement in Virginia or at least it gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link.

If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

Broken Heart Family

Quite frequently, people contact our office and ask us is a separation agreement required in Virginia? We are happy to answer them with the simplest answer there is – no. So no, a separation agreement is not required in Virginia. A separation agreement is not required for parties to be separated in Virginia. A separation agreement is not required for the parties to get a divorce in the courts of Virginia. So why should someone have a separation agreement or what is the benefit of a separation agreement in Virginia? Let me explain.

To explain it, we must first define a separation agreement. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can take control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.

So now that you have a general overview you might be asking “well, what exactly is a separation agreement?”. This is a fair question. The separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be overinclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.

So the question that drew you to this post is whether a separation agreement is required in Virginia. Again, the answer is no – a separation agreement is not required in Virginia to get a divorce. An oversimplification that might be easy to understand is this:

There are two types of divorces in Virginia – contested and uncontested. The easiest way to state the difference between the two is whether there is a written separation agreement (again also known as a Stipulation or Property Settlement Agreement) that addresses everything and the Court does not have to decide anything. As the parties have worked everything out it is an uncontested divorce. The Complaint is filed along with some other papers, there are a couple of additional filings, and it is all sent to the Court for the Judge to sign. This is where the settlement agreement comes into play – the Court knows from the moment the case is filed that there is nothing to argue about or for it to decide.

A contested divorce is one where there is no written separation agreement, an incomplete written separation agreement, or a separation agreement where one person wants to change the terms of child custody, child visitation or child support. Again, this is an oversimplification as there could be other issues that the parties could require help with from the Courts.

So do you have to have written separation agreement to have an uncontested divorce? No but it sure helps. A Complaint for divorce can be filed with the Circuit Court and if both parties sign the Final Decree of Divorce then, usually, the Court will enter that Decree and the divorce is granted. Now there are some steps in between but I hope that you did not think that this post was a “do it yourself” turorial on how to do your own divorce. This post is not even designed to give you specific legal advice. Each case is different and what may work for one case may not work for other cases. This is why we offer free initial consultations with a lawyer – so you can get fact specific advice to your case.

Now you are probably asking yourelf (or want to ask me) – if I don’t have to have a separation agreement in Virignia why should I get one. Three simple reasons (and I will save the best for last). First, you and your spouse are controlling all aspects of your divorce. How you live your life, your finances, and even parenting your children is controlled by you as opposed to two or three lawyers and a judge. Ist this good enough reason? If not, then the second reason should help. Second, it is quicker for you to get divorced. The Court knows from the moment that the divorce case is filed that it is uncontested. This means that it is a matter of pushing paperwork through the Court. No hearings, no motions, no settlement conferences. It makes everyone’s lives easier. Now the final reason may be the most attractive of all. The third reason that you should have a separation agreement in Virginia is that it saves you money! Yes – without having to pay lawyer fees, court reporter fees, and process server fees you save a substantial amount of money. Admittedly, there is a cost to a good and thorough separation agreement, however, that pales in comparison to the cost of a contested divorce.

Now that you know about whether a separation agreement is required in Virginia, you may have another question about whether you can write your own separation agreement. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.

I hope that this answers some of your questions at least regarding whether a separation agreement is required in Virginia or at least gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link. If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

Separation Agreement Virginia

When discussing a separation agreement with a client or potential client the question usually comes up as to what the benefits are to having a separation agreement. This can be a lengthy answer and, sometimes, fact specific to each case. In this post I will try to hit some of the highlights or benefits that apply to almost everyone. Again, this is not meant to be an all-inclusive list and does not account for the specifics of any one case. If you have questions about your matter, I always suggest that you consult with competent attorney.

Before I begin, I want to define what a separation agreement in Virginia actually is so that we are on the same page. Admittedly, this is very similar to the description that I have used in other posts, however, I wanted to remain consistent. If you have read these posts feel free to skip this paragraph unless you want to refresh your memory about separation agreements in Virginia. If you have read other posts this may redundant and you can feel free to skip to the next section. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties.

So when discussing the benefits of a separation agreement in Virginia we have to start with the biggest and most prominent benefit – control. Think about this for a moment, a divorce affects the most intimate aspects of your life. A judge can decide who lives in the marital home, who pays debts, how much support is paid, and even your ability to see or parent your children. Remember that the judge is the least informed person in any trial as the Court only gets to hear information provided by witnesses. Additionally, a judge is bound by the rules of evidence, civil procedure, and the laws applicable to your case. Lastly, a judge is human who comes to the case with their own opinion as to how things should occur or what should happen. By writing a separation agreement, the couple takes control away from the judge and puts it in their own hands. Control – of your finances, your living situation, your retirement, your children, and so much more.

Along those same lines, another benefit of a separation agreement in Virginia is that it establishes the rights as well as the obligations of each spouse. It determines, in an oversimplification, who is going to do what after the separation and the divorce. There should be no question, no ambiguity, no issue at all as to what each party gets and for what they are responsible. By doing this, if there are issues then there is a contract that can be enforced forcing a party to act or holding them accountable for failure to act. As part of the benefits of a separation agreement, there will be no “grey area” or question about individual responsibilities.

Another benefit of a separation agreement in Virginia is that it resolves any and all outstanding issues. Now, admittedly, this is a blanket statement and there can be exceptions if the couple does a partial separation agreement but generally speaking a separation agreement in Virginia tends to cover all issues. Again, nothing is left to a judge’s determination and the rights as well as the responsibilities of the parties is clear. If everything has been agreed to in a written separation agreement, the Virginia courts will routinely enter the divorce.

Yet another benefit of a separation agreement is that it allows the parties to agree to something that the Court cannot Order the parties to do. A judge’s authority is not unlimited. There are things that the Court can and cannot order. For example, absent medical incapacity a child support obligation ends at either eighteen or, if still in high school, nineteen or high school graduation whatever comes first. In a separation agreement, the parties can agree to a further date for child support to end – example, after graduation from college. Another example is the expense of college. A Court does not have the ability to Order that the either of the parties pay or contribute to college. This is often referred to as a moral obligation not a legal one. In a separation agreement, the parties can agree on college expenses. Two more examples are pre-college educational expenses or extra-curricular activities. If a child is going to private school or plays a travel sport, the Court cannot order either of the parties to pay for these expenses. However, one of the benefits of a separation agreement in Virginia is that the parties can agree to those costs and expenses.

Sometimes the parties can only work out some of their issues and not all of them. In this case, the parties can agree to a partial separation agreement to cover just those issues. Somes of the benefits are all of the above stated benefits. Another benefit is that it will reduce time and expense as some of the issues have been resolved. Lastly, perhaps the parties need more information or would like some time before agreeing on everything. Again, another benefit of a separation agreement or a partial separation agreement in Virginia.

Believe it or not, establishing a date of separation can prove to be troublesome. Even this seemingly simple matter can sometimes prove to be quite difficult. The date of separation is very important as it establishes financial responsibilities or benefits to the parties. In a separation agreement, the parties can agree to the date of separation. This makes things cleaner for the parties.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are benefits that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

Now that you know about some of the benefits of a separation agreement in Virginia, you may have question as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

I hope that this answers some of your questions regarding the benefits of a separation agreement in Virginia as well as giving you a starting point. If you have more questions, you can always visit our Separation Agreement page by clicking on this link to read more or to set up a free consultation with a lawyer.