Are you looking to learn more about the Virginia separation agreement?
Many people believe their divorce has to be a long-drawn-out battle within court. But what if the spouses agree on how to solve all of their divorce-related issues? In this case, spouses will need to receive an uncontested divorce.
This post is a continuation of our last one on the Virginia separation agreement. Below we discuss more on uncontested divorce and separation agreements.
Going through a separation and divorce is already difficult, so you shouldn’t add extra stress to the mix by worrying about the correct legal procedures and rules. This guide will help simplify the separation process for you to ensure you comply with Virginia’s laws.
What Is an Uncontested Divorce?
When couples decide to divorce, they often agree not to fight over property ownership, child custody, or support payments. When couples share a mutual agreement on these subjects, they can receive an uncontested divorce.
If you and your spouse reach a consensus on these issues, you won't need to go to court. In place of court hearings, you can file a separation and property settlement agreement.
A separation and property settlement agreement should address the division of your property and debts. Additionally, the agreement can include child custody, visitation and child support terms. After the judge reviews your separation and property settlement agreement and all required divorce documents, if all documents meet the legal requirements for a Virginia divorce, the judge will sign your divorce decree and your divorce will be final.
What Goes into a Separation Agreement
In Virginia, separation means “living apart.” This occurs when a couple no longer lives together as husband and wife, even if they are under the same roof. A couple can even live apart when they do not sign a separation agreement, as the Virginia courts do not grant legal separations.
There are certain elements couples need to meet before they can go from separation to divorce, however. These include:
- Completing a separation period during which the couple lives separately for a year.
- After this, couples with no minor children can get divorced in six months.
- If the divorce is filed due to adultery, the couple can technically finalize the divorce without the six-month or one-year waiting period.
Courts do not typically like to schedule divorce trials before the separation period is complete, though, so it’s in your best interest to plan for a year-long separation.
What is a Separation Agreement
A separation agreement is also referred to as a “property settlement agreement” or a “marital settlement agreement.” This is a document signed by both spouses indicating how they will handle certain divorce-related issues. Specifically, it addresses significant factors that need finalization before a divorce can be granted.
These issues include:
- Child support
- Child custody
- Visitation rights
- Division of property, including marital property and spousal support
- Pension plans, 401(k)s, and IRAs
- Tax issues
A knowledgeable and experienced law firm — more specifically, a family law attorney — often drafts these agreements. Separation agreements are contracts, which means they need to meet specific legal requirements to be valid. Yours becomes legally binding once you and your spouse have signed it, and the court will then usually approve it and incorporate it into your final divorce decree.
How to Get a Separation Agreement
Separating from your spouse is never easy. Trying to work out the details can be even more challenging, especially when you are trying to finalize finances, how to split your marital property, and even child care issues. During this process, you want to make sure you look into everything and iron out all the details of who will own which assets.
One other important aspect is that agreements full of typos or mistakes can harm your case’s credibility and create opportunities for misunderstandings. It is thus best to have this form prepared by a divorce attorney or reviewed by one to ensure all the information is accurate.
Couples who want to file a separation agreement must typically follow these steps:
- Confirm the state’s residency requirements.
- If the state’s residency requirements are met, you will file a legal separation petition with the court.
- You will also file your legal separation agreement, which needs to cover all the critical issues such as child support payments, custody, spousal support, marital debts, alimony, and how marital assets will be distributed.
- If you are not filing for separation jointly, you will need to serve your spouse the separation agreement once you file for legal separation.
- Spouses who do not agree to the provisions in the petition can file a counter-petition. A judge will settle such issues if you cannot come to an agreement.
- If you both agree to the provisions, you will both sign and notarize the agreement. It will then be entered into court records for approval by the judge.
- A judge will sign and file it with the court after reviewing and approving it.
Separation agreements are incredibly detailed and contain many vital elements. Before drafting one, it is best to talk to an experienced divorce attorney who can provide the legal advice you need to ensure yours is prepared correctly.
How the Separation Process Differs in Virginia
There is no specific procedure for obtaining “legally separated” status in Virginia for no-fault divorce cases. Most couples just go from being married to living apart and finally getting a divorce. Separation agreements are not required, but they can provide couples with benefits, including:
- Limiting expensive and time-consuming litigation
These agreements generally resolve many outstanding issues between the parties. - Offering greater control over the process and outcomes
These agreements provide the couple with greater control over important issues instead of leaving such decisions up to the judge. - Fault grounds
Separation agreements typically provide that any divorce will be on the no-fault ground of separation, meaning that if the couple has lived apart for the appropriate time, either can file for an uncontested divorce on no-fault grounds.
Finally, separation agreements can shorten the amount of time required for a no-fault divorce. As a result, even couples that do not have any debts or issues that need resolving may still enter into an agreement to speed up the divorce process.
My Divorce Agreement Includes Living Separate and Apart: What Does It Mean?
How does Virginia define “living separate and apart” for divorce? There are two things the law requires:: one, a physical separation, and two, at least one party intending to end the marriage.
Physical Separation
Usually, one party moves out of the marital house after a physical separation takes place. Spouses can live separately under the same roof in Virginia during their six- or twelve-month separation period. However, the guidelines for this process are stringent.
The Intention of Permanently Separating
A spouse must have decided that the marriage has ended and informed their spouse of this fact. Often, this involves a text message or email, but sometimes it is as simple as a conversation. If you intend to end your marriage permanently, it is a good idea to put it in writing.
Remember to include the date of the separation to avoid confusion down the road. If your case becomes contested, your divorce lawyer can more effectively present your case with clear evidence establishing the date of separation.
What About Desertion vs. Separation?
Separation and divorce can be confusing, especially if you establish that you are not deserting the other. A divorce lawyer can distinguish between desertion and separation by observing a party’s actions.
In Virginia, leaving the marital house alone does not constitute desertion. Still, someone can be found at
fault for deserting their spouse if they fail to fulfill their marital duties. These duties include providing financial support, contributing to repayments of debts, and providing emotional support.
When it comes to avoiding a claim of desertion, you still follow the rules and standards of your marriage. This includes your obligations and responsibilities. In addition, separation and its terms are usually discussed and agreed upon.
Hire a Divorce Attorney to Help You Understand a Virginia Separation Agreement
Many people decide to sign a Virginia separation agreement they purchase or download from the internet rather than having it reviewed by an attorney. However, if you cut corners, you may not be saving yourself as much money as you think in the long run.
If you are considering divorce or separation in Virginia, contact the Law Office of Michael Ephraim today to speak with an expert about the process. Our expert team will be happy to discuss any Virginia separation agreement or other questions you might have.