“No, I don’t want a separation agreement – I just want the divorce,” is something that I hear all the time. Like, ALL the time.
No, no, I say, you don’t understand. The thing is, and I’ve said it probably a million times already, in Virginia you either have to sign an agreement, or you have to have a hearing to get all of your assets, liabilities, and responsibilities divided BEFORE the judge can sign off on your divorce.
Yes. Even if there’s “nothing.” Yes. Even if you “already agree”. It’s either an agreement, or a trial in court. And, these days, it’s not so easy to get a trial date, not to mention that you’re really not saving any money at all by going to court, even if you have nothing to divide and there’s no disagreement to speak of.
The quickest, easiest, most cost effective way to get a divorce (ESPECIALLY if there’s “nothing” to divide and you already agree) is by negotiating an agreement first, and then moving forward with the uncontested divorce process. It’s a two step process, it’s true – but it’s probably quicker and almost certainly cheaper than a divorce trial. (Don’t kid yourself, it’s a trial!)
What is a separation agreement?
A separation agreement is a legal contract that formally divides all the assets, liabilities, and responsibilities between a husband and wife.
All of the things have to be divided, all the I’s dotted and the t’s crossed, before the judge will sign off on your decree. The separation agreement will include how the retirement accounts will be divided, what will happen to the home, who will carry insurance, whether you’re required to maintain each other as beneficiaries on certain accounts (and under what conditions), how custody and visitation will be divided, how support will be awarded, how the personal property will be shared, and so on. It’s a highly detailed document!
But, really – we have NOTHING to divide!
That may be! But, in some cases, you have to specifically recognize that you have nothing. You’ll need to recognize, for example, that you are not current owners on any joint property, that you don’t have children in common, and that spousal support is waived (or reserved).
It’s also a best practice point to specifically mention even separate property, and classify it as separate, so that there’s no question about what, exactly, was separate.
If there’s debt, you’ll need to mention that, too, and divide it – so just not having assets doesn’t mean that you have nothing to divide!
Really, I just want the divorce, not the agreement!
So does everyone else! The agreement is phase one of a two phase process. You can’t just get a divorce without an agreement, unless you’d prefer to have a trial. This is just how it all works.
If we have a separation agreement, will we have to go to court?
Probably not, but it’s possible. In some courts, if you’ve lived separate under the same roof for any part of your period of separation, you’ll have an ore tenus hearing. But an ore tenus hearing is not a contested trial; it’s a quick, ten minute hearing where you answer a couple questions under oath.
If you don’t have to do an ore tenus hearing, you’ll get a divorce by affidavit. You’ll answer the same questions as in an in-person ore tenus hearing, also under oath, but you’ll do it in a notarized affidavit instead of in person.
Most of the time, we’re able to complete uncontested divorces by affidavit, which is tremendously convenient (not to mention considerably less expensive).
Do I need a separation agreement attorney?
Probably. Technically, you could draft your own separation agreement – there’s no legal requirement that you have an attorney to move forward with a divorce or custody case, whether contested or uncontested, in the Commonwealth. It’s just pretty risky, especially if you’re not pretty well versed in your entitlements under the law (or contract writing generally – it’s a bit of an art form, for sure).
You’re a big girl, and you can make your own decisions, but I definitely recommend utilizing a separation agreement attorney. It may seem like easy stuff – and, comparatively speaking, it often is – but that doesn’t mean that it’s actually easy or that you won’t struggle to draft provisions that are sufficiently effective, clear, and unambiguous.
Part of what we do is get our clients divorced. The other part is that we minimize problems that they’ll encounter later on down the line. When agreements are poorly drafted, people often wind up spending time (and thousands, or tens of thousands, of dollars) arguing over what it was supposed to have meant.
Not only that, but, in the course of having represented women exclusively for many, many years, we’ve drafted our agreements in such a way to avoid problems that we’ve come across, or that we’ve seen others come across. When you work with a separation agreement attorney, you get the benefit of that attorney’s experience (and, in our case, the experience of all the attorneys that have ever worked here).
The bottom line, though, is that you’ll need a separation agreement before you can move forward with an uncontested divorce. If you don’t – or if you can’t reach an agreement – you’ll have to have a whole divorce trial before your decree can be entered.
For more information, or to schedule an appointment with a Virginia divorce attorney, give our office a call at 757-425-5200.