I met with a woman the other day who, from the moment she sat down, told me that she had just signed whatever her husband put in front of her because she wanted to keep things amicable.
They have four children in common, and parenting was – understandably – her primary concern.
He told her that they’d share custody. But the agreement said that dad would get primary physical custody, and mom would only get visitation every other weekend. She was under the impression that he was only mentioning the weekends so that he could ensure that they’d each get one – not that their intention was that he would receive all the rest of the time. But that’s what the agreement says.
She also accepted way less than guideline spousal support for a much shorter period of time than the court would have awarded it to her. She waived any interest in the marital residence as well as her interest in his Thrift Savings Plan. It went on and on, but, in the interests of time, I’ll just cover those highlights.
Of course, this is about as bad as it gets. She wasn’t even sure what she could have been entitled to (at least, until after our appointment today, when it was already too late). Could it have been worse? Probably not much.
Can I change the terms of a separation agreement after I’ve signed?
No, not really. You’re pretty much locked in to what you’ve agreed to. You can probably understand why, even if you don’t like it. If the court went around overturning agreements willy nilly, people would be a lot less likely to settle their own disputes themselves. That means more litigation, more backed up dockets, more work for judges… It also means people much less happy with the outcome of their cases.
So, for the most part, the court enforces agreements parties negotiated between themselves. Which is why it is so incredibly important to make sure that you’re aware of your entitlements under Virginia law BEFORE you sign an agreement. If you sell yourself short, there’s often not very much an attorney can do to get you out of it.
I signed it, but I was under duress! Surely the court can’t hold me to this separation agreement.
Nope, that probably won’t work either. I mean, you may want to talk to an attorney one on one about your specific situation, but I’ll go over the basics for you right quick.
In order for an agreement to be overturned, it would have to be (1) signed under duress, and (2) unconscionable. Duress really means that, basically, he held a gun to your head and forced you to sign. Unconscionability means that the agreement is so bad that no reasonable person would have signed. If you received a single benefit based on the agreement, then you probably can’t prove unconscionability – after all, the court could look at it as a bargained-for benefit. Whatever it is, it could have been so important to you that you were willing to give up other things to get it.
Even if that thing seems relatively small by comparison, the court won’t let a value judgment enter into it. Hey, who’s the judge to determine what should or shouldn’t be important to someone? It’s about the law and what’s legal, and that’s all. There’s nothing illegal about your husband having you sign an agreement that is kinda crappy for you. Or even really crappy for you.
Are there any exceptions? Can anything else be changed?
Yes! Custody, visitation, and child support are always modifiable based on a material change in circumstances. That’s because custody is based off of the best interests of the child standard, and that’s a changing thing. What might be in the kids best interests today may not be the same as what’s in their best interests six months or a year from now.
So, all the things related to the children CAN be modified – either by agreement between the parties, or through litigation.
Will this agreement be held against me when it comes to custody and visitation?
That’s kind of a tricky question. If dad has primary physical custody now, and the kids are doing really well… Well, obviously, that’s evidence that what he’s doing is working. But that’s not to say that your agreement itself will be held against you, just that the court is going to look at the well being of the children and make a judgment. Would a change help them or hurt them? If they’re doing great, you may find that the court errs on the side of the status quo.
Besides that, of course, your agreement may make your custody and visitation arrangement much more difficult. After all, if you’ve given up on thousands of dollars a month in spousal support, you may have a difficult time obtaining a place to live that would be suitable for you to have more parenting time with the children. If you’ll wind up homeless and destitute, that’s terrible for a custody case.
So, the short answer is no – your agreement won’t be held against you. But you may find that some of the consequences of the agreement may not be advantageous.
Where can I learn about my rights and entitlements under Virginia law?
If you’re interested in learning more about Virginia law and how it operates, consider requesting a free copy of one of our books. You could also register to attend either (or both!) of our seminars: we have one for custody, and one for divorce. If you haven’t already signed, you’ll get lots of great information there.
If you’ve already signed, there’s probably not much that can be done to overturn your agreement. But, like I said, it’s probably not a terrible idea to at least try to get some legal advice. After all, the worst the attorney can tell you is that there’s nothing you can do.
I hope you haven’t already signed something. These are probably my least favorite cases ever, because I have to give such bad information. It’s always best to get advice before it’s too late so that you’re in a position to advocate for yourself as well as possible.
For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.