Separation and Marital Agreements in Virginia

Posted on Nov 18, 2016 by Katie Carter

There’s no such thing as “one size fits all” when it comes to marriage and divorce. That’s why there are so many different solutions to whatever might be going wrong in your particular case—and it doesn’t necessarily mean that you’re headed for divorce.
I know. You’re probably thinking, “WHAT?! Why would a divorce attorney tell me that maybe divorce isn’t the answer?”
The truth is that, although I am a divorce attorney, that’s really not primarily how I think of myself (even though I do happen to handle a LOT of divorces). Mostly, I think of myself as someone who helps women protect their rights—however that goes down. What I do isn’t humanitarianism on an international scale or anything like that, though; what I do, for the most part, does boil down to marriage and divorce. Sometimes, though, you can even work with a divorce attorney to help save your marriage, if that’s your ultimate goal. For a lot of women, it is. And it’s a worthy and admirable goal. I can definitely help you there.
Most of the women that I see tell me, at our first meeting, that they just want to find out about their rights—and, maybe, hear a little bit about separation and what that means. Very few jump straight to divorce and, when they do, they tell me unequivocally that there’s nothing left to save. Maybe you’re not in that boat. In fact, I hope you’re not, especially if you’re still feeling, deep down, like there’s something redeeming in your marriage that you’re hoping to salvage.
Of course, that doesn’t mean you’re dumb, either. You don’t want to just relentlessly keep trying without having something in place that makes it a little easier for you to sleep at night. You’d like to have some idea of what might happen if things take a turn for the worse, even though it’s scary to think about that possibility.
You’re in the right place, and you’re asking the right questions. Though I do handle a lot of divorce cases, I help other women put themselves in a position to save their marriages, too.
I’m sure you’ve heard of prenuptial agreements—but, if you’re already married, you know it’s a little too late for that. Prenups get a generally bad rap in popular culture, but, applied appropriately, they can really be helpful. Most people tend to think of prenups as a document that will help them protect assets they owned prior to marriage in the event of a divorce, but usually that’s not the case. In Virginia, like many other states, the law already protects the property you had before divorce. Anything owned prior to marriage, or even anything given to you or inherited by you from someone other than your spouse (whether before or during the marriage) is your own separate property, and is not divisible in divorce.
Usually, the main goal in the prenuptial agreement is to specify that things should be divided in any subsequent divorce in a way that is DIFFERENT from what the state’s law provides for in the statutes. It may say, for example, that spousal support is waived, or that for each son born of the marriage, mom gets a “bonus” of a certain amount of money (do you remember that episode of Sex and the City where Charlotte has to sign a prenup before she marries Trey?). Because what we’re talking about here is a contract, there are really not a lot of rules—basically, as long as nothing is illegal or against public policy, the agreement can say whatever you want.
But why am I talking about prenups if you’re already married? Because you can do the same thing AFTER you get married, too. Sometimes we call them antenuptial agreements, other times we call them marital agreements; it really doesn’t matter, either way you slice it. The point is that you can negotiate and sign an agreement, after you get married, that specifies how everything will be divided in a divorce—if it comes to that.
Antenuptial agreements can be great for a lot of reasons—but probably the biggest reason is because your willingness to negotiate is higher if both you and your husband recognize that there is something to be saved in your marriage. Think about it. After divorce, where’s the incentive to treat each other kindly and with respect? Everything’s already over anyway, so it’s every man for himself, so to speak.
In a marital agreement, on the other hand, if you’re motivated to save the marriage, you’re going to deal a little more nicely with each other. If there’s something specific that you want to protect that is driving you to read this article, it may be that a marital agreement is the perfect place to ask for what you want. Your husband, if he wants to save the marriage, is more inclined to agree.
It’s a difficult thing to discuss, for sure, but marital agreements can be great. It’s a good way to set up everyone’s expectations so you know what to expect in the event that you can’t make it work. And, since it basically translates into your separation agreement (more on these in a minute) if you actually separate, you can save yourself a lot of fighting later on down the road.
So, the bottom line here is that, even if you’re still hoping to save your marriage, there may be steps you can take to help protect yourself in the event of a divorce later. You don’t have to negotiate an agreement now, but some people choose to for any number of reasons.
A separation agreement, on the other hand, is basically the same document, but it is negotiated after you and your husband have separated and made the decision to end the marriage. That doesn’t mean, of course, that you’ll automatically get divorced; some people negotiate a separation agreement and still reconcile. But, ultimately, the goal of the separation agreement is the same as the prenuptial agreement or the antenuptial agreement—it’s designed to specify exactly what will happen to all of the marital assets and liabilities in the event of a divorce.
So, no matter where you are in the process, there may be an agreement that will help you get things back on track. Whether your goal is to save your marriage or end it, you’re in the right place, and we can help you take steps to protect your assets.
To learn more about separation agreements, click here. (For our purposes, we don’t really need to differentiate between prenup, antenup, or separation agreement; we can do much the same things no matter the type of document.) For more information on Newport News family law 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.