When negotiating a marital settlement agreement or separation agreement, you will inevitably hear your counsel talk about certain standard “boilerplate” provisions. You will probably just glance over these provisions, and your attorney will likely only touch on them briefly while focusing on the meat of the agreement—custody and visitation, support, property, debts, retirement, etc. Unfortunately, such a crude review of these provisions could prove costly.
Take for example the case of Hale v. Hale (2003), wherein Wife was awarded a portion of both Husband’s employer-provided pension plan and his employer-contributed 401(k). Wife had sought an equitable distribution of both assets, while Husband had maintained that only the pension plan was to be divided per the parties’ separation agreement. The agreement referred in its retirement provisions to the “pension plan” in the singular. However, the heading of the retirement provisions and the parties’ boilerplate preamble language … Read More »
The Fairfax County Circuit Court recently issued an opinion that sheds light on an important aspect of Virginia divorce law: when divorcing parties include a provision for spousal support in a separation agreement that is incorporated into a divorce decree, that spousal support can only be modified later if the language of the agreement specifically allows for modification.
In Gordon v. Gordon, the parties divorced in 2003 after signing a separation agreement that provided for an award of spousal support (alimony). The Agreement made support non-modifiable, stating:
The husband agrees to pay to the wife, as and for her non-modifiable support and maintenance, the sum of One Thousand Dollars ($1,000.00) per month, the initial payment to be made on the first day of the month following execution of this Agreement by both parties, and to continue in consecutive monthly installments on the first … Read More »
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 … Read More »
A frequently asked question in Virginia divorce cases is whether one party may relinquish his or her parental rights in exchange for a termination of that party’s child support obligation. Can the parties include such a provision in a separation agreement?
This question was recently answered, quite definitively, in Layne v. Layne, 61 Va. App. 32, 733 SE2d 139 (10/23/2012).
Layne v. Layne involved a married couple with one child. The parties separated and later reached a separation agreement, which included the following provisions:
Child Custody and Visitation: Mother agrees that she has and does hereby relinquishes [sic] her parental rights and any and all claims of parenthood to the child.
Child Support: Father hereby waives the right to any claim of child support.
The separation agreement was approved and incorporated into a Final Decree of Divorce of the parties. Then, … Read More »
If you are like most people, you want to minimize the costs of your divorce as much as possible. You’ve heard the stories about skyrocketing attorney fees and you intend to do everything in your power to avoid them. Plus, you and your spouse seem to be getting along and you think you’ll be able to come to an agreement on most or all of the marital issues. So you start browsing around online for a good template for a property settlement agreement or separation agreement. You can pick and choose the language you like and don’t like, and then you can add in provisions that seem like a good fit for you and your spouse. Sounds like a good plan, right? Think of all the legal fees you’ll save!
The problem with this approach, however, is that by cutting corners, … Read More »
Beginning the divorce process is chaotic, emotional, and often times overwhelming. Many people believe that coming to an agreement as fast as possible is the best resolution. People research online and find phrases such as “Property Settlement Agreements” or “Marital Settlement Agreements” and conclude that such a document will solve their problems.
In trying to reach such an agreement, many people take it upon themselves to negotiate and sign documents without the assistance of counsel. For many reasons signing any agreement or contract without having an attorney review it is a poor decision. You know your life and marriage better than anyone else, but unless you are a family law attorney it is unlikely that you know the potential ramifications and pitfalls of signing a Property Settlement Agreement.
Here is an example to illustrate the power of a Property Settlement Agreement. Assume … Read More »
A while back I wrote a blog piece about establishing a date of separation in your divorce process, and why it’s so important once you have made the decision to move on. Let’s take things a step further. Now that you are in the process of separating, what do you need to know to protect your interests and prepare for the road ahead?
First of all, assess the character and personality of your spouse. How will he or she react to the separation? Is there a chance of spiteful financial retribution? Is there a fear of negligent financial mismanagement? You’ll want to look at how many joint financial accounts (checking, savings, money market, etc.) and joint credit cards are currently open, and consider separating those assets and debts to limit your liability. Many people have fallen victim to a post-separation “race … Read More »
Marital Settlement or Property Settlement Agreements are contracts which can settle by agreement all of the rights, interests, and obligations of separating or divorcing parties, and can also resolve all claims or demands each might have against the other. A Settlement Agreement lays the foundation for a couple to proceed with an uncontested divorce. And, where the parties have no minor children, an executed Settlement Agreement shortens the separation period necessary before filing for divorce in Virginia from 12 months to only 6 months.
The typical Property Settlement Agreement covers division of assets, division of debts, and spousal support, as well as child custody, visitation and child support, if applicable. Full and comprehensive agreements can remove the need for expensive and time-consuming litigation. Settlement Agreements also afford the parties greater control over the results of the termination of their marriage, instead … Read More »
Unfortunately, many people reach a point of no return in their marital relationship. Perhaps a spouse has been unfaithful or abusive, or maybe two people have simply drifted apart over time. Whatever the reason, you’ve made the decision that you need to turn the page and move on with your life. One of the first steps in the divorce process is the establishment of a date of separation. But why is it important, and how can you ensure that you’ve done it correctly?
A separation date may be crucial to your divorce case for a number of reasons. First, if you don’t have a fault basis for your complaint (adultery, cruelty, desertion, constructive desertion, etc.), then your separation date will determine when you can file for divorce. In Virginia, you must wait one year to file if you have children and/or … Read More »
For most uncontested divorces, the parties will need to execute a property settlement agreement, commonly known as a “PSA,” settlement agreement, or simply a separation agreement. With the growing availability on the internet of forms and samples for such documents, some people feel confident in drafting an agreement without the assistance of an attorney. These agreements may turn out to be valid and work for some people, but may result in financial disaster for others.
Language in a separation agreement may seem to have one meaning, but may have an entirely different legal meaning. As an example: John and Ellen sign a separation agreement stating they will “share” physical and legal custody of the child. However, Ellen keeps the children most of the time. Without knowing anything else about this agreement, Ellen may have opened the door for a smaller amount … Read More »