Separation agreements are great, because they allow parties to reach an agreement about how their divorce will be handled, rather than litigating things and ultimately leaving it up to a judge to decide. Judges are super smart and all that, but (1) they don’t know your case as well as you do, and (2) don’t have the time to dedicate to figuring it all out, with all the other cases that are jamming up their dockets. It’s not a judgment; it’s just fact, and it’s something that you need to be aware of if you’re considering something other than reaching an agreement.
In a separation agreement, absolutely every part of the divorce is handled between you and your husband. That’s not to say it’s easy, of course. In many cases, there are months and months (and sometimes even years) of back and forth as we negotiate and figure out what the best possible arrangement might be. I don’t say that to scare you; many divorces are handled very quickly. I only say that to show you the level of commitment with which many people approach settlement (and to illustrate the fact that it’s not necessarily something that comes easily, or something that we’re sure we’ll be able to accomplish from the get go).
Settlement is hard work, but it’s often the most important work in divorce. When custody is part of your separation agreement Separation agreements divide every part of your marriage—including your children. Custody is a typical section we include in the separation agreements we draft where there were children born to or adopted by the divorcing parties. Custody is one of those areas (like spousal support) where we almost always have pretty big disagreements.
What can you do in a separation agreement with respect to custody?
I say all the time that the only limitations when it comes to a separation agreement are the creativity of the drafters. There are any number of solutions you could implement, as long as they’re not illegal or unethical, so you’re encouraged to be creative. As attorneys, we typically tend to think along the lines of what we see happen most often, but you’re certainly not limited to that. Especially when it comes to custody of your children, you’re encouraged to think outside the box and come up with a solution that suits the unique needs of your family. Does your husband travel for work? Do you have a lot of early mornings? Is there a huge Fourth of July party in his family? Does your family absolutely LOVE Halloween? We can take all of those things into account. And, to be honest, not only can we do it, but we SHOULD do it, because doing that kind of thing has a lot to do with your long term satisfaction with the agreement.
You and your husband may not want to stay married, but you’re going to stay parents (and that means that you’ll have to deal with each other for the rest of your lives), and you should be planning on coming up with an agreement that respects everyone’s priorities and allows them to be the parents they want to be. A big part of that comes from knowing and anticipating the specific needs of your family, and drafting something with respect to custody and visitation that reflects that. What if we can’t agree? Lots of people can’t agree on custody initially. It’s hard. It’s emotional. It’s a big deal. It’s the hardest thing about the entire divorce process. If you can’t agree, you can take the issues to court and let a judge decide. Even if you’re able to reach an agreement regarding the finances, you can leave just the custody portion to the court. (Or, alternatively, you could leave it all up to the court.)
When custody is contested, we often see shared custody awarded.
Remember how earlier I was talking about all the special, unique needs of your family, and how you should feel free to draft an agreement that reflects your knowledge and recognition of those special circumstances? A judge won’t do that. A judge will enforce custody based on a general guideline. When it’s shared custody, we frequently see week on/week off custody awarded. Why? Because it’s equal (and therefore fair), and easy. Again, a judge really doesn’t have time (or expertise or inclination) to come up with a specific custody arrangement for your family. Though he (or she) is the person in the room with the most knowledge of the law, he (or she) is also the person in the room with the least knowledge of you, your husband, and your family dynamic. Though he (or she) is certainly intelligent, he (or she) is not in any kind of place to custom create a custody arrangement for your family—nor will he (or she).
What if what we agree on now doesn’t work for us later?
Anything relating to custody, visitation, or child support is always going to be modifiable based on a material change in circumstances. So, just because you reach an agreement today, doesn’t mean that you’re stuck following that agreement until you die. It’s not forever. Why? Well, because custody and visitation in Virginia are based on the best interests of the child, and that’s something that will change and evolve over time. The court isn’t going to hold you to an agreement you reached today five years from now when your child’s life is totally different and something new would be more developmentally appropriate. Your agreement can just deal with what works today, and you can come up with something else later on down the road—either by agreement, or by court order. Or, alternatively, you can try to pull out your crystal ball and negotiate for how things will change over time. It may be that what you envision doesn’t work later (again, best interest prevails, so you could renegotiate), but it may be that your plan DOES work and it ultimately ends up keeping you out of court later.
An example. Let’s say that you have a two year old now, but, in just a couple years, she’ll be in kindergarten. You don’t want to start overnights until she’s in school, so you design a custody and visitation arrangement that allows dad to start taking overnights with her once she starts school. You draft it into your agreement, and you both know when overnights will start. It gives you some time to build that foundation with her and get used to the idea, and it allows him security in the knowledge that, when it’s age appropriate, he’ll have the opportunity to forge the kind of relationship he envisions, too. It keeps him from feeling like you’re trying to keep the child away, which can keep your case out of court—and can ultimately end up saving you thousands, and have the added additional benefit of improving the relationship between you and your child’s father.
You may not care today, but you’ll see that your responsibilities as co parents are made much easier by a cooperative attitude between the two of you. Custody is difficult, but separation agreements are there to help pave the way for success. If you stick with it and try to reach an agreement that addresses your unique situation and allows you and your child’s father to forge a new relationship as coparents, you’ll be in as strong as position as possible. For more information about custody in separation agreement cases, give our office a call at (757) 425-5200.