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.