Family Law AdvisorŪ
- Virginia Separation Agreements -
My husband and I are getting a divorce. Do we need a separation
agreement?
If it looked like rain, would you take an umbrella? No law says you
have to, but you'll feel better if you do. Of course, a separation agreement
costs a lot more than an umbrella, but then it protects you from more than
just a bad hair day. Under Virginia law, once both of you have signed a
separation agreement, the court must usually treat it as carved in stone.
(But folks, don't try this at home. A separation agreement is a formal
legal document and should be written by an attorney.) Let's look at what
a separation agreement might cover:
- Property division: This is what most people expect from a separation
agreement. Who gets the house? If neither one of you can afford the mortgage
and it's going to be sold, who pays for the fix-up costs (cleaning, painting
and so forth), and how will the profit (or loss) be split? Who gets which
vehicle? What about the division of military retired pay? You can negotiate
this before the divorce, instead of letting a judge's decision surprise
you.
- Child support: Whatever you agree to, the court in Virginia must make
sure it is at least the amount required by law. If it's less, your agreement
should explain why, but the court can still order you to pay more if that
would be in the child's best interest. Child support can never be waived.
- Child custody: Joint? Sole? Most arrangements allow for liberal visitation,
but you can be as specific as you want: for example, every Tuesday and
Thursday from 5:30 to 9:30 p.m., and alternate weekends from 5:15 Friday
afternoon until 8:30 Sunday night. No matter what you decide, custody can
always be modified by the court, based on the child's best interest.
- College education: Ordinarily, there's no legal obligation to pay for
college costs, even if the noncustodial parent could easily afford them.
But if he or she agrees to as part of a separation agreement, that's binding.
- Spousal support: How much? For how long? Can it increase? Decrease?
Or will there be none at all? If it's waived in the separation agreement,
it's probably waived forever.
- Taxes: You can agree to file jointly with your spouse until the divorce is final. You can agree that the noncustodial parent will claim the exemptions
for one or more of the children on his (or her) return. You can even agree
that the spouse receiving alimony won't have to pay tax on it (as long
as the paying spouse doesn't take a deduction for it!). In addition, most
separation agreements include "boilerplate" language, standard
clauses that protect the interests of both parties. For example, you'll
usually agree to leave each other alone following your separation, and
promise not to try to claim a share of your spouse's estate should he or
she die before the divorce is final.
- - Williams Mullen
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