In many Virginia divorce cases, the parties resolve outstanding issues between them by use of a separation agreement, also frequently referred to as a “marital settlement agreement” or “property settlement agreement.” Often, parties are advised by their counsel that such an agreement will be “incorporated” into their final order of divorce, and most parties don’t even bother to question that advice, and even more are not even aware that the court has broad discretion to incorporate all, some or none of the provisions of their separation agreement.
So, what does it mean to incorporate an agreement (in whole or in part) into a final order of divorce, and what happens if the court does not incorporate the agreement into its final order of divorce?
Contract vs. Court Order
To begin answering those questions, let’s step back and ask: what is the difference between a private contract and … Read More »
In today’s world, there is a wealth of information available over the internet. People often turn to the web when trying to find a cheaper method for preparing a separation agreement or “property settlement agreement.” Agreement templates are available online for a nominal fee, which makes them very attractive to many divorcing couples.
However, each divorce case is unique. Forms found online are general and may not adequately address your needs. You may find that the form you chose to use is tailored for a different jurisdiction or even a different state than where you live. The form may not reference the correct applicable law, or may fail to include provisions that are vital in your case.
Some choose to use a friend or co-worker’s previously drafted agreement and try to make that agreement work for their own case. However, the facts … Read More »
Virginia law allows a married person who is separated from their spouse to file a petition for “separate maintenance.” Separate maintenance is distinct from spousal support, and may be an attractive option to individuals who require support from their spouse but who do not want or cannot yet file for a divorce.
Separate maintenance initiated as a common-law remedy. It was developed to provide an equitable remedy when there was not an adequate legal remedy. Black’s Law dictionary defines separate maintenance as “money paid by one married person to another for support if they are no longer living together as husband and wife.” At common law in Virginia, there were essentially four elements to a case for separate maintenance: (1) the party from whom support is sought must be at fault, (2) the party seeking support and maintenance must be without fault, (3) … Read More »
Desertion v. Separation in Virginia
Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom … Read More »
You have made the difficult decision to separate from your spouse, but there are insufficient funds in the family budget to support two households. Perhaps it is unclear which party will permanently remain in the marital residence, and neither is willing to move out without having a financial agreement in place. For whatever reason, you find yourself separated from your spouse while living under the same roof. There are several issues to be aware of if you are contemplating living with your spouse during separation in Virginia.
Clients frequently ask whether time spent separated yet living under the same roof as their spouse counts toward the requisite separation period necessary for a no-fault divorce. In Virginia, spouses can obtain a no-fault divorce after six months of living separate and apart without any cohabitation and without interruption, if there are no minor … Read More »
A question that is often posed by persons seeking to separate from their spouse and eventually divorce, is whether or not there is a status of legal separation under Virginia law. The short answer is no, unlike many other states, Virginia’s domestic relations laws do not have a status for legal separation in cases where neither party is at fault in ending the marriage. However, there are many steps you can take to protect yourself, your children, and your assets as you separate from your spouse and move towards divorce.
Legal separation is defined by Black’s Law Dictionary as “the term that applies to a court sanctioned agreement for a husband and wife that details their obligations while living apart.” Some states allow couples to petition the courts for a status of legal separation, regardless of what is causing the breakdown … Read More »
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 »