Virginia only has one requirement to initiate a legal separation: start sleeping separately from your spouse. Time spent living under the same roof can qualify as living separate and apart with the intent to separate permanently, as long as the parties do not share a bedroom. It is strongly recommended that parties have a written agreement as to when separation began in order to avoid future conflict. At times spouses will separate temporarily and reconcile for a period later. Or, they may stay in separate rooms while participating in counseling or other efforts to reconcile, evidencing the intent to reunify the marriage.
In all cases, even those with no children or assets, it is strongly advisable to have a written separation agreement prior to initiating a case for divorce, even if the parties have a verbal understanding. Once the process begins, it can be difficult to “back out” of court if your spouse decides to contest any piece of the case, including the separation date.
What does a separation agreement include?
Any separation agreement should include the following key elements to avoid later disputes:
The act of simply moving out of the marital home can be viewed or argued as abandonment later in the case, so it’s best if parties can show evidence of separation or an agreement to separate prior to one party leaving the residence. Any obligation of the parties on a mortgage or lease agreement are not eliminated by one spouse leaving, so it’s important to have an understanding of who will pay for which joint obligations.
What do we do about custody?
If one party leaves the home and takes the minor children, it can be viewed by the court as withholding of the children from the other parent. Parties with children should be especially cautious to avoid withholding of visitation to the other parent or transferring children into another school. The court wants to see everything remain as close to normal as possible for minor children, as they are already likely facing a stressful time.
Spouses should be cautious about moving too far from the marital home so that visitation can be achieved with minimal impact to the children’s school, social, and extracurricular activities.
Your separation agreement should be extremely clear about the obligations of each parent to one another and to the children. There should be a written schedule for visitation including specific times and locations for pickup and drop-off and when each parent’s custodial time begins and ends.
Do I need an attorney?
Virginia does not require separation agreements to be written by an attorney, but they are not simple documents to draft. Most separation agreements that cover all necessary areas range in length from 20-60 pages and go into specific detail about each party’s obligations, which can avoid future disputes. A poorly drafted separation agreement can mean the parties end up litigating over missing or vague terms, or necessary modifications in the future. A separation agreement can be key to avoiding an expensive and drawn out divorce case and should not be taken on lightly.
Before writing or signing a separation agreement, both parties should consult with a knowledgeable family law attorney who can advise them of their rights and likely outcomes if they were to take the case to trial. Certain rights, like spousal support, should never be waived without first obtaining legal advice. That way each party can enter into the agreement knowing the risks and potential benefits of litigation and they can each make better informed decisions.
Just because you and your spouse are on friendly terms now does not mean it will always stay that way. Separation usually results from tumultuous or difficult relationships and even the most well-meaning parties can have disputes in the future. If language in your separation agreement is vague, faulty, or not laid out properly, you may be forced either to go to court or to live with the terms of an unfavorable agreement.
Why is a separation agreement important?
If you have absolutely no marital property, no debts, and no children, you may not need a marital separation agreement to get a no-fault divorce. But remember, any assets, property, or money accumulated during the marriage is considered to be marital. In any case, a separation agreement provides for the future governance of your relationship, and also provides evidence to the court as to the date that you separated. It can be the difference in waiting 12 months versus six months for a no-fault divorce. When properly drafted, this document leaves no doubt about the details of the ending of your marriage relationship. It is always better to have a clearly written and signed agreement than to rely on verbal understandings. In addition, if you have a Virginia separation agreement, your divorce proceeding will be simpler and it will be clear to the court that you have an uncontested divorce.
A separation agreement is a legal document that will determine your rights, obligations, and responsibilities from your marriage over many years into the future. A Virginia family law attorney spends considerable time drafting separation agreements with the goal of protecting your rights and avoiding future disputes.
Melone Hatley is a general practice law firm with offices in Virginia Beach and Northern Virginia.
Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about separation agreements and our family law practice, contact our Virginia Beach office at 757-296-0580 or our Northern Virginia office at 703-995-9900.