Interesting question. We get this question quite regularly so I decided to write a Post about it. Keep in mind that this post is not designed to give you specific legal advice. Each case is separate. To determine the validity of your particular separation agreement I strongly encourage you to speak with competent counsel. It does not have to be us; just someone who knows what they are doing and can assess your separation agreement under the facts of your particular case.
Let’s start with what a separation actually is in Virginia. Without knowing what a separation agreement is you cannot even begin to answer with whether it is valid. Think of a marriage as a business. If the business ends, the owners of the business have to come up with a plan on dividing the assets and monies of the business. That is what a separation agreement is – a contract between spouses terminating the marriage. A good separation agreement contains everything from custody and visitation to support to retirement vehicles to dividing up personal property (ex., the silverware). So if you imagine a separation agreement as a contract for the ending of the marriage and dividing everything it is easier to actually figure out what needs to be done and what needs to be in the separation agreement.
So why have a separation agreement? Easy – control, speed and money. If you have a separation agreement, you and your spouse control what happens with your life. When you go through a divorce, if there is no agreement then a judge – the least informed person in the room – makes a ruling (decision) on everything. From custody to money to even what happens with your house – you have no control over the situation. A judge decides everything and you have to follow the result. Stinks doesn’t it? The next value is speed. A divorce without a separation agreement can take at a minimum six to eight months to get to court for trial. Even then there is no guarantee that the trial will happen (ex., people get sick, courts close unexpectedly, witness availability, etc.). With a written separation agreement, you go down a different divorce path and the case can proceed much more quickly. Many times there does not even have to be a hearing or trial as the paperwork is submitted with affidavits and the judge signs off on the divorce. Lastly, money. While it does cost money to have a separation agreement written for your divorce, it is cheaper (MUCH CHEAPER) than not having one. For example, one court date, one hearing, one motion could cost you more than a separation agreement. When you factor in drafting the paperwork, preparation for the hearing, travel to and from Court, and then the hearing itself, that adds up quickly. And that hearing may ONLY resolve one small issue. You may have to go back several times.
So now with some background regarding separation agreements, let’s talk about what makes a separation agreement valid in Virginia. There is no magic form. There is no specific template to make it valid. There are a few requirements to make it valid. In a separate post, we will talk about suggestions or good ideas of what should be in a separation agreement.
To make a separation agreement valid, it first needs to be in writing. There is no such thing as a verbal or oral separation agreement. You cannot submit that to the Court as evidence or an exhibit. It is an oral statement. So writing – it has to be in writing. It does not have to be typed. It can either be handwritten or can be typed. I recommend that it be typed because it is easier to amend and much easier to read.
Signed by the spouses. Both spouses have to sign and date the separation agreement. That is the formal acknowledgement that the parties agree to the terms of the separation agreement. If it is not signed then it is not binding. While best practice is to notarize the agreement, it does not have to be notarized. It also must be dated. I recommend that when the party signs it that they date the signature so that there is no issue.
Intent. It must be the intent of the parties for this to be a separation agreement of the parties for the termination of their marriage. If not then there can be problems in the future. It is always best to put language in the separation agreement that it is the intent of the parties to make this an agreement for the termination of the marriage. Not, for example, a temporary agreement or trial separation.
I’m going to use a generic term here – honesty. Now this is not the proper legal term and I know this but this paragraph is going to contain a fair amount of legal terms. Both parties need to be open and honest as well as forthcoming with information. An agreement cannot be obtained by fraud meaning that someone is lying or hiding assets. If that is the case then the agreement can be challenged. There cannot be something called “undue duress”. This is a term that means one side used some sort of pressure or threat to sign the agreement.
If you have more questions or want to speak with me, you can always visit our Home page by clicking on this link to read more or to set up a free consultation with a lawyer. You can also either call us by clicking this link or text us using the yellow bubble on the screen. Either way our phone number is 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.
For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of when you found this post. Thank you for reading this and I appreciate your time.
/s/ Brian
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