Marital Agreements and Eventual Divorce
It’s not always possible for a couple to say, at the very beginning of the process, that they will or won’t ultimately get divorced. For many, there’s a desire to save the marriage, if at all possible. In some of those cases, a marital agreement may be one way to at least attempt to save it before formally putting divorce on the table.
In a lot of cases, something specific went wrong – or there’s some sort of specific cure that the parties imagine could fix things. In either case, it’s possible that a marital agreement can address these problems or cures and can help the parties come up with a plan for how to move things forward.
A marital agreement is a legal contract through which the parties set up a template for how they plan to move forward in their marriage. In the event that their plans fail, however, it sets up specific terms that will apply to the divorce. Most of the time, the marital agreement just deals with some of the more contentious issues in the divorce (like spousal support or a relocation) but it’s also possible that the entire separation agreement could be set forth.
If you’re thinking, “Whoa, what would be the point of negotiating down to all the divorce’s finer points, only to try to save the marriage?” you’re probably not alone. It’s the main objection I get when I suggest it. But I’d argue that, although somewhat un-romantic, there’s something noble about going into an attempted reconciliation with eyes wide open. If one or the other spouse wants to save the marriage, and the other party needs some guarantees in order to fully give themselves over to that process, it’s understandable that there’d be some sort of mutual exchange of promises.
It can also help protect against some of the nuances of the law. In Virginia, if your husband commits adultery and you sleep with him, you’ve legally forgiven him of the adultery. If you legally forgive him, you can’t use adultery as your grounds for divorce, which could make your case more difficult to prove. By doing something in your agreement designed to protect you – like, for example, setting out a specific amount of spousal support that you’d be entitled to receive – you can help ease some of the qualms you might have about trying to work on (and potentially save) the marriage.
It’s a way, for the guilty party (assuming that there is a guilty party) to show seriousness and good faith. It’s a way, for the innocent party (assuming that there is an innocent party) to know that the other spouse is serious, and that he is willing to take her concerns seriously and provide her some level of protection.
In a marital agreement, though, we often put in more provisions than would go in a normal, every day, run of the mill separation agreement, though. Marital agreements often include provisions about seeking marriage counseling, how family financial matters will be handled, and even a prohibition on seeing former paramours. These agreements can allow for a specific number of date nights, or a specific pattern of choices or behaviors.
Putting these things in a contract keeps people honest, and sets forth a certain level of intentionality. You should probably also be aware, though, that we can’t, for example, take someone to court for failure to follow a provision requiring a partner to participate in marriage counseling. A judge wouldn’t make someone do it, even if they had agreed to do so in a marital agreement. So what’s the use?
To establish intentions. And to establish consequences, in the event the conditions set forth are not met by one party or the other. If he agrees to marriage counseling and he doesn’t go, we can’t make him go to counseling. But we can then activate the rest of the agreement, which sets forth how things will proceed when/if your case heads towards divorce. That might be a triggering point after which your spousal support award comes into play. It may mean that it’s time for you to move forward with your divorce, but it’ll at least put you in a position of greater certainty from knowing what, exactly, to expect.
To the degree possible, and to the degree that it doesn’t spoil the underlying goal of the marital agreement (which is, probably, to save the marriage), it’s probably ideal to resolve as many of the underlying issues as possible.
Why? Well, for one thing, you’re at your friendliest now, if you’re both trying to save the marriage. For two, it doesn’t leave as much up to chance once you’re on less friendly terms and divorce is staring you in the face – which saves money, frustration, and resentment later on down the line. The more you KNOW, the better. And the less you leave up to chance after reconciliation doesn’t work out.
If you’re considering a marital agreement, good for you! I know it’s a sort of scary idea, hiring a divorce attorney to help you negotiate an ironclad agreement that helps protect you in the event things don’t work out, but it’s often a testament to how bad things have gotten in a marriage (and also, simultaneously, how much both parties do sincerely hope that they’ll be able to work through their differences).
Does it work? Sometimes. Not always, of course. And we can’t really make any guarantees. Marriages succeed and fail all the time, and that’s not really a factor of whether or not the parties entered into any kind of marital agreement. That’s up to you, and maybe up to your marriage counselor. (Which, incidentally, I highly recommend.)
For more information about marital agreements and how your divorce attorney can potentially help you save your marriage, give our office a call at 757-425-5200.