Separation Agreements, also known as Property Settlement Agreements, play an essential role in protecting married couples who decide to live apart without a divorce and want to formally resolve financial, property and child custody matters.
How Virginia Marital Separation Lawyers Protect Their Clients
States recognizing legal separation offer married couples a procedure to formalize their decision to live separate and apart through the courts for a judgment, decree or order of separation. Living separate and apart in Virginia is not accorded any legal status, so individuals in Hampton Roads or Virginia Beach should protect themselves with a separation agreement. Among the benefits of a property settlement agreement drafted by an attorney are the following:
- Avoiding accusation of abandonment or desertion: When one spouse moves out of the martial home, there is nothing to prevent the other spouse from claiming abandonment and using it as the basis for a divorce by making it appear as though an otherwise innocent spouse simply walked out of the relationship. A written separation agreement prepared by lawyers and signed by each of the parties can prevent a mutually agreed upon separation from being held against one of the parties.
- Settling issues before conflicts erupt: Chances are that a couple agreeing on a separation are not hostile toward each other, so it could be an ideal time to discuss and settle property division, custody, support and other issues.
- Classifying property as separate or marital: Under the law, real and personal property acquired after couples separate is treated as separate property and not subject to distribution in a divorce. This is also the case with debts incurred by the each spouse during the separation. A property settlement agreement drafted by an attorney allows a couple to control how they want property and debts classified to conform to their wishes rather than have it imposed upon them by a judge.
- Establishing the date of separation: Living separate and apart for a continuous period of one year is a no-fault ground for divorce in Chesapeake, Newport News and throughout the commonwealth. Written separation agreements eliminate disputes over the date the parties actually separated. Another benefit of a written agreement is it allows couples without minor children to reduce the waiting period to get a divorce from one year to six months.
Terms Included by Virginia Marital Separation Lawyers
A professionally negotiated and prepared property settlement agreement serves as the framework for how a married couple agrees to move on with their lives while living separate and apart. It also serves to make it easier in the event of a divorce by having all marital issues and property matters resolved in advance. Among the terms Virginia separation agreement attorneys include are the following:
- Date the parties separated: Establishing the date the parties agreed to separate avoids disputes if one of them attempts to obtain a no-fault divorce based on separation.
- Prohibition against either spouse using any of the fault grounds to seek a divorce: Such a provision may avoid unnecessary conflicts and discord after the separation.
- Provision for how tax obligations and benefits are to be handled: Claiming the children as dependents, filing status, mortgage interest deductions and other income tax issues can be resolved before conflicts arise.
Terms Included by Virginia Marital Separation Lawyers (Cont.)
- Custody and visitation: How the parents agree to share time with the children along with the sharing of responsibilities and decision-making authority can lead to heated conflicts in court unless the parties reach an agreement and commit it to writing when they separate.
- Expenses related to children: Child support, medical expenses, daycare and education costs and costs associated with extracurricular activities are some of the issues usually included in a separation agreement.
- Property division: Virginia uses equitable distribution and the classification of property as either marital or separate to determine the division of property in a divorce. Instead of relying on a judge to make the decision, couples can control how their assets and debts will be distributed by making provision for it in a property settlement agreement.
A properly drafted separation agreement can divide pensions and retirements. It is very important that a military spouse seek counsel from a qualified military divorce attorney to help draft the separation agreement. DFAS will not disburse retirement payment to a former military spouse unless a local court orders the payment to be made. In many cases, the separation agreement must have the correct language dividing the military retirement before DFAS will make payment to the former spouse. If the separation agreement is executed without the proper language, then there may be no way for the former spouse to collect his or her share of the pension.
Many future conflicts and disputes can be avoided if separating couples allow their attorneys to make the agreements as detailed and comprehensive as possible.
Separating Without Moving Out: In-house Separations
The law does not prohibit a two people in Chesapeake from agreeing to live separate and apart without one of them moving out of the marital home, but it can create doubt whether the couple actually separated. A court may find that there is not enough evidence of separation to support the divorce when a couple continues living together after “separation.” This is where a separation agreement can help by incorporating language clarifying the couple's living arrangements.
Using a Lawyer Ensures the Validity of a Property Settlement Agreement
Property settlement agreements are contracts and must meet certain requirements to be enforceable by a court, including:
- Full and honest disclosure: A contract can be declared invalid if a Court determines it is unconscionable or unfair. If one of the parties to a property settlement agreement fails to fully disclose financial information, a Court could refuse to enforce it against the person who was denied the opportunity to obtain the information needed to make an informed decision.
- Voluntary agreement: The use of fraud, duress, undue influence or coercion to compel a person to agree to the terms of a separation agreement could result in a judge refusing to enforce the agreement against that individual. Contracts must be freely and voluntarily entered into by the parties to be enforceable in court.
- Contractual capacity: Minors and people suffering from a mental defect may lack the legal capacity to enter into a binding agreement.
One way to help ensure the validity of a separation agreement is to have each party represented by counsel. This way neither party can legitimately claim they were under duress or did not understand the document at the time of signing.
Hampton Roads Lawyers Looking Out for Their Clients
The Law Offices of John W. Lee, P.C., has a skilled team of Virginia separation agreement attorneys with more than 70 years of combined experience to protect the rights and safeguard the future of anyone going through a separation or other marital discord. Contact us today at (757) 896-0868 to schedule a free and confidential initial consultation.