Despite its name, a separation agreement is not literally an agreement to separate: it’s actually an agreement about how a divorcing couple will handle divorce-related issues, including child custody, child support, property division, and alimony.
Separation agreements (also called property settlement agreements (PSAs) in Virginia) are contracts drafted by attorneys (usually) and signed by both parties. Therefore, a separation agreement must meet the same legal requirements that apply to contracts in order to be valid. For example, it must be in writing and signed by both parties. The agreement must be fully understood and both parties’ consent to it must be voluntary. It cannot be the result of fraud or duress, nor can it contain any ambiguities or be unconscionable (egregiously unfair) or against public policy.
Under Virginia law, once you and your spouse have signed a separation agreement, the court will usually approve it and incorporate it into your final divorce decree.
But we don’t recommend that you do this on you own. A separation agreement is a legal document that should be written (or at least reviewed) by an experienced family law attorney who is looking out for your interests.
Working directly with your spouse (or through counsel for each spouse) to reach a workable agreement on how your post-divorce lives will look is usually the preferred method of resolving your divorce issues. Although both spouses will have to compromise and may not get 100% of what they want on all fronts, negotiating is almost always going to be less traumatic and less expensive than a full-blown divorce trial.
Divorcing couples are therefore encouraged to try and work out all of their issues through mediation or collaboration, with the help of attorneys that can guide each side through the process. The attorneys can take over all communication, so you and your spouse don’t have to discuss every detail. In addition, if you can reach an agreement, your attorney can make sure the separation agreement is written correctly and that your rights are fully protected.
Even in the most simple divorce case, it’s best to at least have an experienced family law attorney review the separation agreement on your behalf.
Once the separation agreement is finalized, a court will approve it as long as it’s reasonable and child-related provisions (such as custody and visitation arrangements) meet the best interests of the child. Once approved, the agreement may be incorporated into a final divorce decree, which means it’s an official order that must be followed by both spouses.
The other option - going to court - can be quite painful, both on your psyche and your pocketbook. If you end up in court, you have to ask a judge, who doesn’t know all the details and nuances of your family and finances, to make important decisions that will greatly impact your life. And, you’ll have to hire an attorney who can represent you at trial and will charge you hourly fees. You’ll also have to pay court fees and other trial-related costs.
A divorce trial can also take much longer than a divorce negotiation. Your case may be subject to involuntary delays due to the court’s calendar, which may be overflowing with cases. It may also suffer from additional delays by your spouse or your spouse’s attorney’s, which may be intentional (strategic) or unavoidable (a busy calendar).
There are of course some issues that simply cannot be resolved without the help of a judge. If you are facing such an issue, you should contact an experienced family law attorney for help.
Separation agreements allow divorcing couples to spell out their agreements prior to the final divorce. They can address all issues raised by the divorce, including the following common examples:
Property division: Couples can agree how to divide their assets, such as homes, cars, jewelry, furniture, bank accounts, retirement benefits, insurance policies, business interests and investments. For more information, see Division of Marital Property in Virginia.
Child support: Whatever child support amount you agree to, it must be at least the amount required by Virginia law. For complete information on child support and how it’s calculated, see Child Support in Virginia, by Teresa Wall-Cyb.
Child custody: Courts will generally approve a reasonable custody and visitation plan as long as it’s in the child’s best interests. For information on child custody, see Child Custody in Virginia: The Best Interests of the Child, by Desiree Howard.
Alimony: Spouses can agree on an amount and duration of alimony (also called spousal support or maintenance). For more information on alimony, see Understanding and Calculating Spousal Support in Virginia, by Teresa Wall-Cyb.