How to get a separation agreement in Virginia

In Virginia these days (and probably almost everywhere), most people get uncontested, no fault divorces. It’s a practical matter as much as anything else; uncontested, no fault divorces are the quickest, easiest, most cost effective divorces.

So, how do you get an uncontested, no fault divorce?

There’s really just one way: a separation agreement.

So, what’s a separation agreement?

A separation agreement is a legal contract. It’s unique to the divorce process, and it divides everything from the marriage. All the assets, like the retirement accounts, including stocks, bonds, mutual funds, 401(k)s, IRAs, pensions; bank accounts; real estate; cars, boats, airplanes, RVs, and jet skis; kitchen appliances, linens, furniture, computers, TVs; and more. It also handles child custody, support, and visitation. In a separation agreement, you’ll also determine spousal support, if an award is warranted in your case. You’ll divide any business owned by a party or parties to the marriage. You’ll also divide any liabilities, including credit card debt, loans, lines of credit, mortgages, or other debt.
The catch? You’ll have to draft a separation agreement that your husband will sign. (Or, vice versa, he’ll have to draft one that you’re willing to sign.)

How do I get a separation agreement?

The good news is that, if you really want a separation agreement, you have a number of choices when it comes to how you want to get one. There’s not just one way; there are a number of different ways, depending on what you think will work best for you, that you can get one.
Another good thing? You have a lot of freedom when it comes to the terms of your agreement. Though most attorneys have form agreements that serve as a starting point, you can work together with your attorney to come up with specific terms that suit you. We often tell our clients that the only limitation, when it comes to a separation agreement, is the creativity of the drafters.
What do you care about most? You know, of course, that everything that belonged to you during your marriage is going to be divided. A separation agreement lets you craft a way for you to walk away from your marriage with the 50% that means the most to you. Not only that, but it allows you to really maximize the value of that 50%.
Think about it. If you go to court and let the judge decide, not only do you have no control over which 50% you get, you’ve also spent, in most cases, tens of thousands of dollars in attorney’s fees to get there—which, basically, means that there’s tens of thousands of dollars less to divide anyway. Not where you want to be at the end of your divorce? Feel like you’d prefer to have that money available to be divided between the two of you? Sounds to me like a separation agreement is the best option for you.
Now that you’ve decided to move forward with an uncontested, no fault divorce (by way of a separation agreement), it’s time to consider how you’ll get your separation agreement in place. You have a couple of options.

With an attorney

You probably already know this, but you can definitely hire an attorney to help you get your separation agreement drafted. Did you know, though, that, when it comes to hiring an attorney, you have two different options—both of which will help you prepare a separation agreement?

Negotiation

Probably the most common way of getting a separation agreement in place is through a process that attorneys call negotiation.
When you negotiate a separation agreement, you hire an attorney to draft an agreement on your behalf, and then negotiate back and forth with the other side (with your husband personally if he isn’t represented by counsel, and through the attorney if he is represented) until you reach an agreement you’re comfortable signing. The goal? Getting the best agreement in place. It’s an adversarial process (as opposed to a collaborative case), but it’s not nearly as adversarial as going to court.

Collaboration

You can also hire an attorney to pursue the collaborative divorce process. In a collaborative divorce, both you and your husband have to commit to collaboration and hire collaboratively trained attorneys. You’ll also make a pledge not to go to court, and to lay all the information out on the table—no costly discovery processes (like in a contested divorce) here. You’ll also hire a divorce coach for each of you, and share a child and a financial specialist to help the two of you reach an agreement that reflects both of your priorities. The goal? Coming up with a separation agreement that is in both of your best interests, and helps the two of you get what you need to move on.

Mediation

In mediation, you and your husband can work with a mediator (one mediator, shared between the two of you) to reach an agreement. It’s like negotiation, in that you go back and forth to reach an agreement. But it’s also unlike negotiation because, instead of having an attorney on your side to represent your interests exclusively, the mediator’s job is not to educate you about the law, what a judge might award, or what women in other similar circumstances have been able to get. It is the mediator’s job to help you reach an agreement—that’s it. For more information about mediation, including it’s advantages and disadvantages, click here.

Do it Yourself Divorce

You’re also welcome to draft and negotiate a separation agreement on your own. In Virginia, you can represent yourself in your own divorce case, so there’s nothing stopping you from putting pen to paper (or, you know, fingers to the keyboard) and drafting something up yourself. Of course, as you know, there are some risks to that as well, especially if you don’t know the law, don’t know what you’re entitled to, and aren’t a very skilled writer or negotiator.

What if he won’t sign?

That’s the risk. That’s the risk all of us take, whenever we decide to start a divorce by drafting a separation agreement.
There’s nothing I can do (or you can do) to make him sign. If he doesn’t sign, you can go back to the drawing board and come up with another solution (like, negotiate, and work from there), or you can file for divorce.
If your husband is particularly pigheaded and refuses to negotiate any agreement whatsoever, you may find that you have to go to court, regardless of what you might prefer to do. A separation agreement is nothing but a bunch of paper with ink on it until you reach a point where you’re both willing to sign. If he won’t, and you still want to move your case forward, you may need to file for divorce.
Though you can technically represent yourself in even a contested divorce case in Virginia, I really wouldn’t recommend it. The court procedure is complicated and constantly changing, and it would be very difficult (if not virtually impossible) to successfully represent yourself.
Keep in mind that a divorce is one of the biggest financial transactions in most adult’s lives. You need to tread carefully and keep in mind that your inclination to save money where you can shouldn’t be at the expense of tens of thousands (or, potentially, even more) of assets that you would have received or argued successfully for—if you had an attorney on your side.

If I sign, can I change my agreement later?

Probably not.
That’s the thing about contracts. Once you sign them, they’re valid. And you can’t really un-sign them later, because that wouldn’t be fair to the other side. If, whenever you signed a contract, you always worried and wondered whether, after you did whatever it was that you promised to do, the other side was going to try to un-sign it, contracts would be a lot less effective as a means of conflict resolution.
Why does this matter? Well, for a lot of reasons, but mostly because it keeps people out of court. Courts (and judges) have a vested interest in encouraging people to settle their own disputes and reach mutually agreeable solutions. It keeps those people out of court, and prevents them from taking all of the court’s time to solve things that they are capable of solving for themselves.
No one would ever rely on a contract to settle a dispute if they knew that it would be easily overturned later. Courts don’t want people to be worried about reaching an agreement, relying on that agreement, or performing whatever they promised to perform in their agreement.
So, in order for an agreement to be overturned, a number of things have to happen. First, the agreement has to have been made under duress. An example? If your husband made you sign with a gun pressed to your forehead.
But duress isn’t enough on its own. Duress has to be combined with unconscionability, meaning that your agreement is so bad that no reasonable person would have signed it. That means, basically, that your agreement has to give everything there is to him, and leave nothing for you.
Otherwise, even if what you receive is something small, especially in comparison to what your husband walks away with, it may look like whatever you received was so important that you were willing to give away everything else to get it. In other words, it looks like a bargained for benefit. Maybe it’s not, but the court won’t engage in a lengthy discussion on what is (or should be) important enough to someone that they would bargain to receive it.
So, to make a long story short, there are a number of ways in Virginia that you can get a separation agreement in place. Most people choose to hire an attorney and negotiate an agreement, mostly because it’s the cheapest, easiest way to get one in place AND be protected. An attorney will review your agreement, advise you about your rights under the law, educate you about what you can expect to receive, and even prepare you in the event you decide to take a particular issue to court.
For more information about separation agreements or to schedule a meeting with one of our attorneys, give our office a call at (757) 425-5200. We’re here to help!