Is custody included in my separation agreement?

Posted on Apr 12, 2019 by Katie Carter

If you’ve never been through this before, you probably have a lot of questions. Of course you do! After all, it’s complicated, and even a bit scary. You’re dividing up your whole life, and you don’t know what that will mean or how it will impact your every day.

I met with a woman the other day who asked me, “Should I file for custody and visitation, while we’re working on the separation agreement?” A perfectly good question, but one that showed me that she didn’t completely understand a separation agreement, or what it can do.

A separation agreement is a legal contract between a husband and wife (soon to become ex husband and wife) that divides all the assets, liabilities, and responsibilities between the two. It handles equitable distribution (the fancy legal word we use to describe division of property) – including bank accounts, cars, bank accounts, retirement and other investment accounts, real estate, pets, personal property, spousal support, etc.

It also handles custody, visitation, and child support. In fact, in cases where custody is an issue, the custody and visitation section often makes up at least a third and up to half of the entire document. It’s chock full of particulars – the type of custody awarded, the visitation allowed, how holidays will be divided, summer vacation and other breaks from school, etc. It also includes some other things you might not expect – not making disparaging comments about the other parent around the children, how long you have to wait in the event that your child’s father doesn’t show for visitation (and that he will reimburse necessary babysitters fees), and so on.

We can also put in specifics unique to your situation – time for Skype chats, a right of first refusal (after a certain amount of time NOT in his care, the children would have to be returned to you, even during his parenting time), no drug or alcohol use during parenting time (usually, this is something we use when it has been an issue previously), and so on. There are lots of things we can do to customize an agreement and make it something that works for your specific situation.

So, do I need to file for custody and visitation while I work on my agreement?

A good question, too. You obviously know that an agreement isn’t instantaneous. It takes some time, in many cases, to negotiate the specific terms that will govern your divorce. After all, there’s a lot here to discuss and, ultimately, divide. As you can probably imagine, at different times, different issues take center stage. Retirement, support, and custody often take some time to hammer down, and can be potentially divisive.

Generally speaking, though, it is not necessary to file for custody and visitation while your separation agreement is pending, though I can understand the temptation. You’re living in such uncertainty, you want to feel like something is happening. And uncertainty where your kids are concerned is probably the worst of all. So why NOT go to court?

Well, it’s really not necessary, and it probably won’t speed things along. A couple of things you should be aware of….

1. Juvenile courts are super backed up.

Though you may get an initial appearance date, you likely won’t get an actual TRIAL date for awhile. Most of the juvenile courts in the Hampton Roads area are super backed up, and it can take six or more months to get a trial date – sometimes much longer.

Chances are good that your agreement will have resolved itself by then.

2. Litigating (often) increases tensions.

I think you’ll also likely find that, if you file, you undermine any attempt at negotiation. You know your husband better than I do, of course, so you can be the ultimate judge – but it’s hard to continue to negotiate on the one hand with a looming court date on the other.

It’s not impossible, but I think it makes everything more difficult, and promotes more mistrust. That’s not to say that this is the case in every situation, but if you’re already started negotiating, without more going on that I don’t know about, it’s probably not the time to file for custody and visitation.

3. If negotiation doesn’t work out, you’ll need to file for divorce.

Really, if your negotiation fails, juvenile court isn’t where you’ll need to be anyway. Juvenile court is the only place where you can have JUST custody and visitation and child support determined but, in the event you can’t reach a separation agreement, you’ll have to file for divorce – and that’s a circuit court issue.

So, if you had already filed in juvenile court, it would have been a wasted effort – it would be divested in favor of the circuit court, which could resolve all the other divorce-related issues.

So, while technically you could file for custody and visitation, there’s really not much point. Unless there’s something else going on, you’re probably better off to at least attempt negotiation first. In the event you aren’t able to reach an agreement, the circuit court will be where all this will be determined.

I know it’s hard to wait, especially when you probably don’t have a lot of faith in your husband or his ability to reach a rational agreement at this point, I still say that you should at least give negotiation a shot before you try to do anything on a more contested basis.

For more information, or to talk to an attorney in a little more depth about your current situation, give our office a call at 757-425-5200.