It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they want to enforce. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.
The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.
Secondly, there are plenty of other provisions that we family law attorneys are commonly asked to include in separation agreements, or that we frequently see in agreements already in place, that are unenforceable. Here are just a few examples:
- Waiving Future Child Support. A parent cannot contractually waive his or her right to seek future child support. Why? Because a child has a right to receive support and because parents have a duty to financially support their children. Further, if parties were able to contract away their obligation to financially support their children, the Commonwealth would face a crisis in regards to financial assistance to families. So, while parties can agree that based upon their current financial circumstances no child support will be payable at present, such an agreement can never be permanently binding.
- Custody. Again, custody is always modifiable based upon a material change in circumstances. Common unenforceable provisions which we come across are those which try and prohibit the relocation of a custodial parent with the child. For example, a provision may read “In the event the mother [the primary physical custodian] moves more than 30 miles from the father’s current residence [the minority custodian], primary physical custody shall automatically transfer to the father.” A provision like that is unenforceable. Why? Because at the end of the day, the best interest of the child is the court’s paramount concern, and not the parties’ past promise to each other. A relocation of the child may actually be what is best for the child, despite the terms of the parties’ agreement.
- Future Jurisdiction Over Custody and Visitation. Sorry, but you cannot contractually agree which state has indefinite jurisdiction over any custody or visitation issues which may arise in your case.
In addition to the above, parties undergoing a divorce will sometimes inquire as to whether a parent’s custodial rights can be terminated via separation agreement. The answer is no. Why? In Virginia, a parent cannot be relieved of their parental rights simply because they do not want to provide financial support to their child and/or do not want a relationship with the child and the other parent. In Virginia, the parental rights of a parent can be terminated only if there is a third party willing to step into that parent’s role. To allow a parent’s rights and responsibilities to be terminated without a new parent “stepping into their shoes” (legally speaking), would dramatically increase the chance that the child would become an orphan or a ward of the state (i.e. a child to whom the Commonwealth is financially responsible). For more information, see Can A Separation Agreement Terminate Parental Rights In Virginia?
Finally, things also get sticky when parties try to insert custody provisions into their agreement which involve third parties who are not parties to the contract. For example, a provision in a separation agreement may state that “In the event either of the parents of the children were to die, the surviving grandparents shall receive visitation with the children every other weekend.” Unfortunately, such a provision would be unenforceable. Why? One, because the grandparents are not parties to the contract and, therefore, cannot request its enforcement. Two, because, once again, the best interests of the children is the court’s paramount concern and will always trump any agreement between the parties—and such a provision would not necessarily be in the best interests of the children.
If you are facing a divorce or separation, be sure to consult with an experienced family law attorney as soon as possible. Livesay & Myers, P.C. has a team of experienced family lawyers with five convenient office locations, representing clients across Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Separation in Virginia