The Two Types of Provisions in VA Separation Agreements

Posted on Nov 12, 2021 by Katie Carter

Separation agreements are one way to resolve a divorce in Virginia; the only other alternative is to go to court and litigate in front of a judge. Ultimately, in the vast majority of cases, the parties themselves decide that they’d rather be responsible for dividing the assets and liabilities of their marriage between the two of them, rather than relying on a judge (who knows far less about the case than you and your soon-to-be ex do) to do it for them.

In general, this is a choice that is effective and that minimizes both the amount of time and the overall expense involved in a divorce. In most cases, getting an agreement negotiated is a win/win.

It’s not a win, however, when parties sign agreements without having them reviewed by an attorney, without understanding, or without having had the opportunity to ask questions, suggest revisions, or participate meaningfully in the process.

Every single day, women sign agreements – drafted by their husbands or their husband’s attorney – that denies them things that they would otherwise have been entitled to. Every single day, women find out that there’s virtually nothing we can do to overturn an agreement once its signed. (And, even if we could, the time and the expense involved would be significant.)

In Virginia, you don’t have to retain an attorney to help you – whether you’re negotiating an agreement or litigating in court – in a divorce or a custody case.

But you’ll also find that, if you choose not to hire an attorney, you’ll be held accountable for any mistakes you make. Not knowing the law, not understanding the agreement or a particular provision or even a word, or even feeling strong pressure to sign – will not overturn a bad agreement for you.

It’s important, regardless of whether you choose to hire an attorney or to go at it alone, that you ask questions, suggest alternatives, and thoroughly understand what you’re agreeing to or what you’ve been ordered to do.

In general, I find that there are a lot of misunderstandings about provisions in agreements. That can happen for a lot of reasons – use of legalese, for one thing – but it can also be somewhat intentional on the part of the opposing side. Consider, today, these two different types of provisions we see in agreements.

Specific, intentional provisions are ideal in separation agreements!

Most enforceable provisions are VERY specific. That means that they carefully articulate who is responsible for doing what, how, and by when.

A lot of times, women tell me that it’s fine to be vague, or insist that the parties will work it out when it all comes down to it. I can completely understand; it doesn’t feel good to specify, down to the minute, exactly when things will happen. In some cases, depending on how communication between the parties is being received, it even feels downright antagonistic.

But it’s also a major defense for BOTH of you. You both go in, knowing what to expect, and knowing what the other side’s obligations are.

If, say, a bank account is going to be closed by a date certain, and the funds therein divided by that same time, you’ll know that by the time you’re outside of that date, one or both of you is breaching the agreement. It makes it clear for the judge to see what was supposed to have happened, and to tell that the time allotted for having achieved that goal has passed.

That means that, if a show cause or other motion needs to be filed to enforce the agreement, it’s easy to see what was intended to be done.

We always include dates, especially where an exchange of money is supposed to have taken place, so that the other side can’t say that they meant to do it, but without reference to when, exactly, they intended to do it.

There are all sorts of ways that unscrupulous people will try to monkey around with the specifics, so a good agreement includes as many SPECIFIC provisions as possible. If someone has a first right of refusal to refinance the house into their sole name before its placed on the market, we’ll list how long they have to contemplate the refi. If you’re sharing unreimbursed medical expenses pro rata, we’ll specify how long your ex has to pay his portion, if you’ve paid it in advance (like a copayment).

Lawyers like specifics.

Aspirational provisions in separation agreements

There are also provisions put in separation agreements that are more aspirational, and less intentional.

You should be wary of these. A lot of times, we include them as a smokescreen – to look nice, but not to actually accomplish anything. To establish, maybe, a general intention, but to avoid giving the provision enough legs to actually mean that the parties will really have to do anything like what we’re describing.

A good example of this, I think, is college expenses. I came across a provision about college expenses the other day that made me think of this – and want to point it out to anyone who might otherwise be unsuspecting.

Here’s the provision (though, note that I’ve changed the child’s name here to protect the privacy of the woman who asked me about this):

“The parties will use their best efforts to provide a four year education for Jennifer, consistent with their then existing income and assets. Each party expects to pay for one half of Jennifer’s reasonable college education costs for an instate student at a public college or university.”

For whatever reason, Jennifer was the first name that popped into my head. Anyway.

Look at the language here – they’ll use their best efforts to provide, consistent with their then existing income and assets.

That’s not MANDATORY language. That’s not “the parties shall” or “the parties agree to”. This is entirely aspirational, but it gives BOTH sides several places where they can cop out. What does ‘consistent with their then existing income and assets’ mean? Who even knows?

If one party argues that paying half isn’t consistent with their ‘then existing income and assets’, what would a judge do? It’s possible that the judge would look at what they were earning when the agreement was signed and make a judgment about whether they could afford it – but I could foresee it being a reasonable argument to say, ‘well, ten years ago, I was on track to make much more, but it never materialized, and at this level I just can’t afford it.’

I can also imagine the judge saying, well, under the Virginia Code, he doesn’t have the authority to require people to pay for their adult children’s college tuition – so this agreement just isn’t strong enough to give him the authority to do it.

I’ve never litigated this issue, so I’m not entirely sure what would happen. But this is a good example of a provision that was intended to pacify one or both of the parents and establish a mutual intention – but it’s nowhere near as powerful as a specific provision.

The bottom line?

In a separation agreement – as in all legal documents – language really, really matters. You want to make sure that you’ve read your agreement, that you understand it, and that you’re clear on exactly what you are obligated to do.

There’s a difference between ‘shall’ and ‘must’ and ‘may’. What’s a ‘best effort’, anyway? Loosey goosey, that’s what!

If something is really important, you’ll want a specific provision. It’s entirely possible that, in another area, you’d want something more aspirational, it’s just that you’ll want to know where you intended to give yourself a little wiggle room and go into your agreement in full knowledge of the advantages and disadvantages it confers on you.

Maybe he’ll miss it, but you owe it to yourself to review it and get it right the first time. Chances are really very good that you won’t have the opportunity for a do over!

For more information about separation agreements, to attend one of our monthly divorce seminars, or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.