Many local couples wonder if they need a Virginia separation agreement before they get divorced. As a result, these couples use information from family and friends that is not always accurate.
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 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.
Seeking a Separation Agreement in Virginia?
Many couples want to minimize costs during a separation, but what ends up happening is they cut corners and, consequently, hurt themselves in the process. It is important to understand that you may not know everything required under Virginia law to get separated or divorced. That is why it is essential to speak with an experienced divorce attorney who can help you through this ordeal.
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.