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The Power Of The Property Settlement Agreement

AgreementBeginning 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 “Husband” and “Wife” are married for 26 years. After 26 years, Husband wishes to separate and divorce. Neither Husband nor Wife wish the process to be contentious. Husband who was the sole financial provider throughout the marriage agrees to pay spousal support in the amount of $2,200 per month for 15 years.

Husband and Wife draft their own agreement which states, “Husband shall pay to Wife the sum of $2,200 per month paid on the first of each month for the next fifteen years beginning the month following the execution of this Agreement.” Husband and Wife sign the agreement, the divorce is finalized and “incorporates” the agreement, and for many years Husband pays the monthly obligation. Then Husband is laid off due to the downsizing of his company. Despite his best efforts he is unable to find gainful employment in his previous area of work.

Husband is unable to meet the monthly spousal support obligation and files a Motion to Amend Spousal Support based on the change in his employment. Husband and Wife appear at the hearing ready to litigate the issue of amending the spousal support only to find out that the support cannot be amended. The judge refers them to a Virginia case, Pendleton v. Pendleton, which holds that unless language is included in the Agreement to allow for modification of spousal support, the court cannot amend the support. Without a second thought the judge dismisses the Motion to Amend. Husband is stunned to learn that despite his extreme change in financial circumstances, which was through no fault of his own, he must continue to pay the $2,200 per month or be in violation of the agreement and the Final Decree of Divorce.

When Husband agreed to pay the support, he was doing what he thought was best and hoped it would quickly settle the spousal support issue and lead to a smooth, uncontested divorce. Many people fear consulting with attorneys because they believe having lawyers involved will escalate the situation and make reaching an agreement more difficult. It is unlikely that a family law attorney with whom Husband might have consulted would have talked him out of his desire to provide for his Wife after the divorce. But, an experienced family lawyer certainly would have advised him as to the great importance of language allowing for future modification of the support. Such language was crucial in this situation, because no person can know what the future holds for a full 15 year period.

The divorce process does not need to be long or contentious, and agreements can be quickly reached whether counsel is involved or not. However, before signing any contract or agreement each party should review the document with individual counsel to ensure that they have a full understanding of their rights and obligations.

The divorce attorneys at Livesay & Myers, P.C. are experienced in the drafting, negotiation and review of Property Settlement Agreements. We represent clients in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.