In Virginia, you can get divorced in one of two ways. You can either go to court (and let a judge decide), or you can negotiate a signed separation agreement.
Most people ultimately end up with a separation agreement, because it’s cheaper, easier, and more time efficient than going to court. But if you’re preparing for an upcoming divorce, you probably have a lot of questions about what that really looks like. What’s a separation agreement? How does it work? What are the advantages and disadvantages of negotiating a Virginia separation agreement?
You’re in the right place, and you’re asking the right questions. That’s a great start! Today, though, I’m going to help make sure you get the right answers now, so that you can start planning your steps in the days and months to come.
What is a Virginia separation agreement?
A separation agreement is a legal contract and, like any other legal contract, it is enforceable by the courts. In a separation agreement, you specifically set forth how everything in your marriage is going to be divided. Everything, from child and spousal support, to custody and visitation, how to deal with the marital residence, retirement accounts, real estate, stocks, bonds, mutual funds, bank accounts, cars, boats, motorcycles, credit card debt, and more can be divided in your separation agreement.
How do I get a separation agreement?
In a separation agreement, you and your husband negotiate how everything will be divided. Usually, someone starts off first with a proposed agreement, and then revisions go back and forth until both parties are satisfied. Of course, it’s not always easy; sometimes, we wonder whether we’re not going to have to go to court after all. But, these days, most divorces ultimately end in separation agreements. So, even in the cases that look the toughest to begin, we’re able to negotiate a settlement that leaves both parties feeling good enough about it to sign.
You can get a separation agreement in a couple of ways. In fact, you can negotiate it on your own, without the help of an attorney, if you choose. Of course, you have to be a little bit careful with that—anything that you find on the internet is a little bit suspect, unless you know from whom and where it came. You also need to be sure what you’ve found is up to date and Virginia specific, and even that you have some idea what the court might award you (there’s no sense writing an agreement on your own if what you prepare is worse than what your husband’s attorney might prepare for you).
Of course, you can also hire an attorney to get a separation agreement established. If you choose to hire an attorney, you can get a separation agreement drafted in one of two ways. Either you can hire your attorney to negotiate your agreement, or you can hire a collaboratively trained attorney and pursue the collaborative process. In negotiation, it’s pretty much your standard back and forth, with your attorney representing you and your interests and your husband’s attorney representing his interests. It’s adversarial in the sense that there’s no philosophy behind it that you’ll share information freely or work together towards a conclusion. In a collaborative divorce, on the other hand, though your attorney represents only you, you make a pledge not to go to court and together you work through all of your issues. Not only that, but it’s not just you and your attorney and your husband and his attorney; there’s a whole host of other professionals involved, including a divorce coach for each of you, a financial specialist, and a child specialist. The specialists are shared between the two of you, with the purpose being to find the best result for both of you.
You can also work with a mediator, if you choose. But, before you make the decision to call a mediator, read this article about the advantages and disadvantages of mediating your divorce.
I want to use my fault grounds. Can I do that in an agreement?
No, you can’t. All separation agreements are uncontested, no fault divorces. Let’s talk about what that means.
Uncontested just means that you and your husband are able to reach an agreement. (Again, it doesn’t mean that it’s easy!) A divorce is either contested, meaning that you couldn’t reach an agreement, or uncontested. A separation agreement is always uncontested, because you’ve reached an agreement. It is possible to reach an agreement on all but one or two things; those divorces are categorized as contested.
No fault doesn’t mean that you don’t have fault based grounds (though it could); mostly, it just means that, regardless, you choose not to move forward using them. A no fault divorce can be either contested or uncontested. After all, just because you decide not to move forward on fault doesn’t mean that you can automatically reach an agreement about how all your assets and liabilities will be divided! A fault based divorce, though, is always contested. Because there are civil and criminal penalties associated with many of the fault based grounds, you have to actually go to court to prove that your grounds exist. There’s no such thing as “agreeing” to a divorce based on a fault based ground for divorce. Like a criminal case, there are certain burdens of proof that are required to be met. In order to have your divorce granted on those grounds, you’ll have to prove it to the judge.
What difference does it make? An uncontested, no fault divorce is one where you don’t have to go to court and fight over how everything is going to be divided. Instead of litigating fault or fighting over the assets (or both), you negotiate and reach an agreement together. Instead of having a trial, you have either an uncontested divorce hearing (a quick ten minute hearing), or finish your divorce by affidavit, meaning that you submit the paperwork for the judge to peruse and approve without appearing in court.
Why would I want a separation agreement?
A separation agreement is a great way to resolve your divorce. If you and your husband can negotiate, it’s going to yield a better result for you. Why? Well, for one thing, because you can avoid the additional time and expense that litigation requires.
Not only that, but, because you don’t spend tens of thousands of dollars on attorney’s fees, there’s often more left over to be divided at the end of your case. If you go to court, you’re gambling that you’ll get a larger piece of the pie; you also need to remember, though, that a larger piece of a much smaller pie may amount to less than two equal slices of a much greater pie.
Additionally, by avoiding the judge, you can focus your energy instead on getting the portions that mean the most to you. Judges typically view divorces as business transactions; they don’t spend much time or energy on listening to how things should be divided. They’ll split things right down the middle.
Instead, if you negotiate your divorce, you can ask for the things that mean the most to you. Leaving it up to a judge leaves too much up to chance. Want to keep the marital home instead of selling it and splitting the proceeds? You can negotiate that. Want to make sure that you always have a week in August when your family rents a house in the Outer Banks? You can negotiate that, too. (Of course, you’ll have to keep in mind that your husband probably wants a couple things, too.)
There’s also a lot of room for creativity in a separation agreement. You can really spend time thinking about your family and coming up with a solution that is practical and workable for you. A judge won’t be able to spend that kind of time with you. It’s best to take it upon yourself, talk to your attorney, and work with your husband to create a solution that allows the two of you to walk away in as strong of a position as possible.
For more information about separation agreements or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.