Do I Need a Separation Agreement in Virginia?

Written by Melone Hatley, P.C. on . Posted in .

Unlike many other states, legal separation in Virginia is not granted by the courts.  Instead, a husband and wife, wishing to separate and divorce, may simply live apart, even under the same roof.  It is strongly advised, though, that they enter into a separation agreement, also called a marital settlement agreement or property settlement agreement.  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.  This document states that the couple has agreed to:

  • Live separate and apart
  • Divide their marital property and debts in a mutually acceptable way
  • Provide child support, custody, and visitation for minor children
  • Include other appropriate provisions such as spousal support or maintenance

The act of simply leaving a spouse can be deemed spousal desertion.  Separation agreements provide that any future divorce will be on no-fault grounds.  Once the agreement is in place, and the parties have separated and lived apart for six months with no minor children, or twelve months with minor children, either party may file for an uncontested divorce on the no-fault grounds of separation.

What does a separation agreement cover?

A separation agreement should cover major life circumstances going forward, including, but not limited to the following items.  Your attorney will be able to tailor your agreement to your specific circumstances and protect your interests.

  • The date separation began
  • Grounds for divorce as well as the court where the case will be filed
  • Property division
  • Division of debts
  • Visitation of minor children
  • Child support payments
  • Spousal support
  • Health insurance
  • Disposition of the marital home
  • Pension plans, IRAs, 401(k)s, and other retirement assets
  • Tax issues
  • Future dispute provisions

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 is 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 to 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?

The short answer is no.  You can draft a separation agreement yourself.  But, as with all contracts and legal documents, it is best that you consult with a knowledgeable Virginia family law attorney with experience creating separation agreements.  You’ve heard that separation, divorce, attorney fees, and court costs are expensive.  But this is not the place to try to minimize costs.  By cutting corners during the separation agreement process, you may ultimately be harming yourself.  You probably don’t know what you’re entitled to under Virginia law, and the agreement you reach with your spouse may not be favorable compared to what a judge might award you in court.

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. It’s also important to remember that just because you and your spouse are on friendly or civil terms now, this may not always be the case and your relationship may break down in the future. 

If the language in your separation agreement is faulty, or the specifications regarding custody, visitation, support, and the division of property are not laid out properly, then you could be forced to either live with the terms of the signed agreement or spend time and money trying to clear up the ambiguities in court. Unfortunately, you may well end up spending much more in legal fees later to “fix” issues created by a faulty separation agreement, than it would have cost you to simply have a solid agreement drafted by an experienced attorney right from the start.

Why is a separation agreement important?

If you have absolutely no marital property, no joint debts, and no children, you probably don’t need a separation agreement to get a no-fault divorce.  You and your spouse will simply go your separate ways.  But that is not the norm. 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.  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 understanding.  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.  Your attorney will make sure that all the “what if” scenarios are covered.  A one-size-fits-all, fill in the blanks document that you find on the internet does not necessarily protect you or take into account your very specific situation.

About Melone Hatley

Melone Hatley is a general practice law firm based in Reston and serves the Northern Virginia area.  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 office today at 800.479.8124 or contact us through our form here.


Melone Hatley, P.C.

Written By Melone Hatley, P.C.

Melone Hatley P.C. is a family & estate planning law firm helping protect our client’s families, finances, and future. Serving Virginia Beach and Northern Virginia.
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