We have a signed separation agreement. Now what?

Posted on May 1, 2017 by Katie Carter

It wasn’t easy, but you’ve done it. Even though you doubted for awhile that it even could be done, that it was even within the realm of possible scenarios, you and your husband finally signed a separation agreement. There’s nothing left un-done; all of your assets and liabilities were handled and divided between the two of you. It’s a relief, there’s no doubt about that. In many ways, you feel like you got a pretty good deal, and in other ways, you feel like he did. That’s normal. It’s also normal if you’re wondering, well, “We have a signed separation agreement – now what?”

What happens AFTER the signed separation agreement?

In a word, nothing. Or, at least, not very much. Once you’ve signed a separation agreement, there’s really not a whole lot you can do until you reach the period of separation before you can file for divorce.
In Virginia, in order to have grounds for a no fault divorce, you have to be separated for one year. There’s one exception to that rule which would allow you to file for divorce on no fault grounds after just six months of separation, and you have to meet two specific criteria in order to qualify: (1) you have to have a signed separation agreement (which you do! Good for you!), AND (2) you can’t have any minor children.

What if we’ve already been separated for a year (or six months, if we qualify)?

If you’ve already been separated for a year, congratulations! You officially have grounds for divorce, and you can begin to move your uncontested divorce forward. (Skip ahead to the section on filing for uncontested divorce.)
You have to have grounds in order to file for divorce, and you do—so you’ve met all the criteria to file for an uncontested divorce. There’s no need to wait any longer; once your one year (or six months) is up, you can file immediately.

Can he change his mind and file on fault if we disagree on something else later?

Usually, no. Most separation agreements include a provision that says that you (and he) are barred from finalizing your divorce using any grounds other than no fault grounds. There are some minor exceptions, and you’d need to read your agreement thoroughly for details about what pertains to your specific case, but usually there’s no choice: you’ll have to finalize on no fault grounds.

We have a signed separation agreement, but we’re thinking of getting back together. What does that mean for our divorce?

Most agreements also include a reconciliation provision. (Again, you should read yours thoroughly for specific details on exactly what your agreement says!) A reconciliation provision usually provides that, if the two of you reconcile, your agreement will survive the reconciliation if you separate later on down the road. You can get back together, but if you break up—the agreement stands.
If your agreement doesn’t include a reconciliation provision, it may be that getting back together defeats the agreement. Again, you’ll have to look at your agreement in detail, and potentially even have it reviewed by an attorney, but it’s a possibility and something you should be aware of—just in case.

My attorney was retained to help me draft the separation agreement—but now that’s done. What now?

Even though your retainer was just to get the separation agreement in place, most of the time we’ll give our clients the option to keep their separation agreement file open until it’s time to file for the uncontested divorce. That way, if they have any questions in the mean time, they can still ask. (After all, even though there’s a separation agreement in place, it’s not like the divorce is finalized yet!)
If you want to close your file, though, you can do that, too. (Though it doesn’t cost you anything to keep it open, unless additional work is done on your file—which would be requested by you, since you agreement was already drafted.)

What happens when it’s time to file for uncontested divorce?

When it’s time to file for the uncontested divorce, you’ll either be the moving party or the reviewing party. Most attorney’s offices require that, if you move forward with an uncontested divorce, you fill out and sign a separate retainer agreement, and pay a retainer specific to the uncontested divorce.

If you’re the moving party

If you’re the moving party, it’s going to be your attorney’s responsibility to draft the documents you’ll need to finalize your uncontested divorce. Your attorney will draft a complaint, a final decree of divorce, a name change order (if applicable), and so on—and it’ll be your attorney who files everything with the court and moves things forward until the final decree of divorce is officially entered.
These days, most courts in Virginia give the option of an uncontested divorce hearing or, alternatively, getting a divorce by affidavit.

Uncontested Divorce Hearing

An uncontested divorce hearing is no big deal. At an uncontested divorce hearing, you, your attorney, and your corroborating witness (someone, like a family member or a friend, who can testify about how long you and your husband have been separated based on their reasonable knowledge) will go to court and have a quick hearing. The judge or your attorney will ask you questions to establish that jurisdictional and legal grounds exist for the judge to grant a divorce, and then your divorce will be granted.

Divorce by Affidavit

Many people these days choose to get divorced by affidavit instead. I think mostly this stems from convenience (as well as a general wish to avoid the courtroom at all costs), since there’s no requirement that you’ll make an appearance in front of a judge at all. Instead of answering the judge’s questions and testifying in front of the court, you’ll testify in affidavit form. You and your corroborating witness will answer the same questions, under oath, on paper that you would answer in person in an uncontested divorce hearing.
A divorce by affidavit can also often save money, since there’s no need for the attorney to make a court appearance on your behalf. Instead, it’s just a matter of filing the appropriate paperwork. A small downside, though, is that your divorce often takes longer this way. Since you’re just filing paperwork, it basically just goes into a pile that is reviewed as the judge gets to it. Depending on the time of year and the volume of cases the court has at any given time, the amount of time it can take to finalize your divorce this way can vary pretty dramatically.

If you’re the reviewing party

If your husband is the moving party, that’s great! It’ll save you a fair bit of money because you won’t have to pay your attorney to draft most of the documents needed to finalize your divorce. That doesn’t mean, though, that you don’t want to have an attorney review the documents your husband’s attorney has prepared. Though you could certainly opt out of retaining an attorney to review documents on your behalf, many people choose to hire an attorney to make sure everything moves forward properly. Again, you’ll likely have to fill out a new retainer agreement, and pay a new retainer fee.
And that’s pretty much it! Of course, your case is finalized when the final divorce decree is entered—and you’ll hear back from the court when that happens. It tends to happen faster in a case where you have an uncontested divorce hearing than when you get a divorce by affidavit but, either way, it’s not a terribly long process. (Though exactly how long depends on the court and its docket.)
For more information about uncontested divorces or what happens after a separation agreement is signed, give our office a call at (757) 425-5200.