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 of leaving various decisions to a judge. Finally, these agreements provide the opportunity for soon-to-be-ex-spouses to agree on matters which are outside of the court’s jurisdiction, such as post-secondary educational expenses.
However, these contracts are limited in their reach in several ways which separating or divorcing parties should understand.
First and foremost, they are agreements. If the other party refuses to sign the agreement, then you have no agreement. A party cannot be forced to enter into a contract. If you and your spouse are unable to reach an agreement, then absent a fault-based ground for divorce, you must wait for the expiration of the 12-month Virginia separation period before filing your complaint for divorce.
Second, parties should understand that the execution of a Settlement Agreement does not end the marriage. They are still married until a Final Decree of Divorce is entered by the Court. Even with a fully executed Property Settlement Agreement, neither party is single and romantic relationships with anyone other than each other can be considered adultery.
Moreover, even with a Settlement Agreement in place, the parties are not “legally separated.” Although these agreements are frequently referred to as “Separation Agreements,” the Commonwealth of Virginia does not recognize legal separation. This can be very confusing, since a separation period is required to obtain a divorce in Virginia, but the bottom line remains… your status is either married or not married.
Third, parties should appreciate that a Settlement Agreement is not a court order. A fully executed agreement is a valid contract and as such is enforceable by general contract principles. However, Property Settlement Agreements are not court orders and are not enforceable as such.
This is especially important when there are minor children involved. In many cases, a divorcing couple will execute a Settlement Agreement detailing custody, visitation and support arrangements regarding their minor child or children, only to have one party then breach the Agreement prior to the parties’ divorce even being filed.
If a party fails to perform according to a Settlement Agreement prior to such time as it is incorporated into a court order, the remedy is a breach of contract proceeding. If a Settlement Agreement specifies a particular visitation schedule for children and one party does not follow the Agreement, the police cannot force compliance with the contract by itself. Unless the Agreement has been incorporated into a court order, the police are without power to enforce its provisions.
Even with their inherent limitations, Marital Settlement Agreements remain the most efficient way to settle many issues, and in most situations are well worth the effort. They allow parties to avoid investing potentially large amounts of time, money and energy into a contested divorce, and to begin to move on with their lives.
The divorce lawyers at Livesay & Myers, P.C. are experienced in the drafting, negotiation and review of Property Settlement Agreements. We represent clients in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Prince William County, Fredericksburg, Spotsylvania, Stafford, and throughout Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Separation in Virginia