In Virginia, a separation agreement is a legal contract that outlines the terms and conditions agreed upon by a married couple who are separated or plan to be separated soon but are not yet divorced. It can also be called a “marital agreement” or a “property settlement agreement.” It is a contract between married parties to settle their issues, including, but not limited to, property division, spousal support, child custody, visitation rights, and child support. 

Unlike many other states, Virginia does not have a process for establishing a “legal separation.” However, parties can come to agreements about their separation and eventual divorce, which, when written into a separation agreement and signed as a valid contract, make most of the decisions for separation and divorce. With most of the decisions made, the parties just have to wait for the statutory waiting period to have the court enter the divorce. 

Benefits of a Separation Agreement

Reaching an agreement rather than litigating a divorce has many benefits. However, cooperation from both parties is required. It usually also requires transparency, a willingness to exchange documents, and full disclosure of the financial information necessary for both parties to make informed decisions. 

Some benefits for parties that can resolve the issues by agreement are that it is often less expensive and time-consuming than litigating a divorce in court. Another benefit is that reaching an agreement can shorten the amount of time it takes to obtain a divorce. Parties who do not have minor children can obtain a divorce after being separated for six (6) months instead of one (1) year if they have reached a written agreement resolving all issues of the divorce. 

Because a separation agreement is a contract between two parties, the parties have greater control over how to resolve certain issues than if a court were to decide. Courts only have statutory authority to resolve particular issues and cannot stray outside of those statutory bounds. By contrast, if two parties are willing to contract to do something, a Court will accept the contract as long as it is valid and not against Virginia public policy. 

One example of this expanded authority to contract is dividing college expenses for adult children. In Virginia, courts do not have the statutory authority to order a parent to pay for college or provide support for a non-disabled adult child. However, parties can agree to payment for these expenses in a separation agreement. Courts will accept contracts that are voluntarily entered, not unconscionable, and are not against Virginia public policy.

It is important to note that each situation is unique, and the process of creating a separation agreement may vary based on the specific circumstances of the couple involved. The attorneys at Stiles Ewing Powers are highly qualified and can provide personalized guidance to ensure that the separation agreement effectively addresses the parties’ needs and concerns. 

Terms Included in a Separation Agreement

Some of the terms that are included in a separation agreement are as follows: 

  1. Identification of Parties: The full names of both spouses should be clearly stated at the beginning of the agreement.
  2. Effective Date: The date on which the agreement becomes effective should be specified to establish when the terms and conditions outlined in the agreement take effect.
  3. Division of Marital Property and Debts: A clear list of all marital assets and debts should be included, along with how they will be divided between the spouses and the timing for division. Sometimes, categories of assets and debts are used so long as there is no confusion about what those categories cover.
  4. Spousal Support: If one party is going to pay spousal support, also known as alimony, to the other, a separation agreement should outline the amount, duration, and terms of any payments from one spouse to the other, or should include a clear waiver of spousal support by one or both spouses.
  5. Child Custody: If there are children involved, the agreement should address child custody arrangements, including physical and legal custody, visitation schedules, and decision-making responsibilities. 
  6. Child Support: If one parent is going to pay child support to the other parent, the agreement should specify the amount of child support to be paid, the support guidelines used to calculate it, and other related financial obligations, such as healthcare and education expenses.
  7. Tax Considerations: Any tax implications resulting from the separation agreement should be discussed, such as claiming dependents for tax purposes and filing status. It is typically a good practice to have a Certified Public Accountant (CPA) review a separation agreement and advise on any potential tax issues of the agreement.
  8. Dispute Resolution: The agreement can include a provision describing how disputes arising from the agreement will be resolved, whether through mediation or court proceedings and how the legal expenses of the prevailing party will be paid.
  9. Modification and Termination: To address changing circumstances, guidelines on how the agreement can be modified or terminated in the future for issues such as child custody or support should be included.
  10. Notarization: While it is not required, it is a good practice to have both spouses sign the agreement in the presence of a notary public to avoid a later denial of signing.

Including these key elements in a Virginia separation agreement can help ensure that the document is comprehensive, legally sound, and equipped to address the specific needs and circumstances of the separating couple. The attorneys at Stiles Ewing Powers assist clients every day in drafting agreements that meet all legal requirements and safeguard our clients’ interests. Contact our office to schedule a consultation.