Setting Aside Separation Agreements In Virginia
Many couples who separate for the purpose of divorcing do not have the financial resources or the desire to spend their financial resources on retaining attorneys. We attorneys aren’t offended by the idea of couples mediating between themselves an amicable resolution. However, we always caution people to speak with an attorney before signing any agreement. Some might think it’s our way of getting your money—but the reality in Virginia is that once an agreement is signed it is extremely difficult, if not impossible, to set aside.
There is a long standing principle that people can make as good or as bad of a contract as they want. This is especially true in separation agreements, which can be set aside in Virginia only on limited grounds—when they were entered into under “undue influence” or are “unconscionable.”
The difficulty of setting aside separation agreements in Virginia has been driven home in a number of appellate court decisions. In one case, the Virginia Court of Appeals upheld the enforceability of a separation agreement which provided for $10,000 in monthly spousal support to a woman whose (now ex) husband’s monthly income was $12,000. In overturning the trial court ruling which had set aside the agreement, the Court of Appeals held that there was no undue influence, even though the husband had signed the agreement as a precondition of reconciliation. Furthermore, the Court of Appeals found that the separation agreement was not unconscionable, despite the fact that the husband only made $12,000 a month, because he could make more money. Thus, the husband was held to the agreement he signed, and was forced to pay $10,000 a month in spousal support.
Many people come through our office with similar situations. They have signed something in the hopes of garnering trust with their spouse, with an eye toward a potential reconciliation. But what many people fail to realize is that if the reconciliation fizzles and the parties permanently separate, then under Virginia law they will almost always be held to the terms of that document they signed.
Another mistake many people unfortunately make is signing a separation agreement that they purchased or downloaded from the internet, without first reviewing it with an attorney. These documents can provide a template for spouses to begin discussions about resolving their marital issues and serve as a good first step. But many of the internet forms are not state specific and do not contain the necessary provisions to protect both parties’ interests under Virginia law.
For example, a downloaded template might address the issue of spousal support. But does it spell out—in a manner which will be enforced in Virginia—the length of time support will be paid, if and under what circumstances the support will terminate, and whether a material change of circumstances will allow the court to change the support amount? These are crucial provisions, and their inclusion or exclusion could either benefit or severely harm a party who signs a “form agreement” without attorney review.
Nothing should ever replace the advice of a skilled family law attorney when it comes to separating and divorcing your spouse. Attempting to save a few hundred dollars up front can cost you thousands or tens of thousands of dollars in the long run. This advice is universally true: you should never sign a separation agreement without first reviewing it with an attorney.
The divorce attorneys at Livesay & Myers are experienced in the drafting, negotiation and review of separation agreements. If you are facing a separation and divorce in Northern Virginia, contact us to schedule a consultation today.