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Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in Virginia, but does include basic and other provisions. General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately. The Court may incorporate, ratify or affirm, the marital agreement in the decree of divorce. Virginia also provides that marital agreements, defined as a contract between parties that are already married, may also be made under the terms and conditions of the Premarital Agreement Act, Title 20, Ch.
8 of the Virginia Code. Thus a marital agreement, as a contract, may be revoked only by a written agreement signed by the parties. The marital agreement is thus a part of the decree when it is incorporated by the Court and a valid contract between the parties and may be enforced as such. Statutes: Code of Virginia Title 20 – DOMESTIC RELATIONS.
Chapter 6 – Divorce, Affirmation and Annulment Grounds for divorce from bond of matrimony; contents of decree: A. A divorce from the bond of matrimony may be decreed: (1) For adultery; or for sodomy or buggery committed outside the marriage; (2) [Repealed.] (3) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights); (4), (5) [Repealed.] (6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or (7), (8) [Repealed.] (9) (a) On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.
In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.
(b) This subdivision (9) shall apply whether the separation commenced prior to its enactment or shall commence thereafter. Where otherwise valid, any decree of divorce hereinbefore entered by any court having equity jurisdiction pursuant to this subdivision (9), not appealed to the Supreme Court of Virginia, is hereby declared valid according to the terms of said decree notwithstanding the insanity of a party thereto. (c) A decree of divorce granted pursuant to this subdivision (9) shall in no way lessen any obligation any party may otherwise have to support the spouse unless such party shall prove that there exists in the favor of such party some other ground of divorce under this section or §20-95.
B. A decree of divorce shall include each party’s social security number, or other control number issued by the Department of Motor Vehicles pursuant to § 46.2-342. § 20-91. Court may decree as to property of the parties: A. Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, or upon the filing with the court as provided in subsection J of a certified copy of a final divorce decree obtained without the Commonwealth, the court, upon request of either party, shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision A 3.
The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used. The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.
1. Separate property is (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision A 3.
Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.
2. Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision A 3, (ii) that part of any property classified as marital pursuant to subdivision A 3, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above.
All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property.
For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.
3. The court shall classify property as part marital property and part separate property as follows: a. In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party.
In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.
For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.
“Personal effort” of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party. b. In the case of any pension, profit-sharing, or deferred compensation plan or retirement benefit, the marital share as defined in subsection G shall be marital property. c. In the case of any personal injury or workers’ compensation recovery of either party, the marital share as defined in subsection H of this section shall be marital property.
d. When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.
e. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.
f. When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification. g. Subdivisions A 3 d, e and f of this section shall apply to jointly owned property.
No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership.
For purposes of this subdivision A 3, property is jointly owned when it is titled in the name of both parties, whether as joint tenants, tenants by the entireties, or otherwise. B. For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital property.
However, such interests and rights shall not attach to the legal title of such property and are only to be used as a consideration in determining a monetary award, if any, as provided in this section.
C. Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property which is not jointly owned. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, or any part thereof.
The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E. As a means of dividing or transferring the jointly owned marital property, the court may transfer or order the transfer of real or personal property or any interest therein to one of the parties, permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property, or order its sale by private sale by the parties, through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition.
All decrees entered prior to July 1, 1991, which are final and not subject to further proceedings on appeal as of that date, which divide or transfer or order the division or transfer of property directly between the parties are hereby validated and deemed self-executing. All orders or decrees which divide or transfer or order division or transfer of real property between the parties shall be recorded and indexed in the names of the parties in the appropriate grantor and grantee indexes in the land records in the clerk’s office of the circuit court of the county or city in which the property is located.
D. In addition, based upon (i) the equities and the rights and interests of each party in the marital property, and (ii) the factors listed in subsection E, the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.
The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. An award entered pursuant to this subsection shall constitute a judgment within the meaning of § 8.01-426 and shall not be docketed by the clerk unless the decree so directs.
The provisions of § 8.01-382, relating to interest on judgments, shall apply unless the court orders otherwise. Any marital property, which has been considered or ordered transferred in granting the monetary award under this section, shall not thereafter be the subject of a suit between the same parties to transfer title or possession of such property.
E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors: 1.
The contributions, monetary and nonmonetary, of each party to the well-being of the family; 2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties; 3. The duration of the marriage; 4.
The ages and physical and mental condition of the parties; 5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95; 6.
How and when specific items of such marital property were acquired; 7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities; 8. The liquid or nonliquid character of all marital property; 9. The tax consequences to each party; and 10. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
F. The court shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party or support for the minor children of both parties and shall, after or at the time of such determination and upon motion of either party, consider whether an order for support and maintenance of a spouse or children shall be entered or, if previously entered, whether such order shall be modified or vacated.
G. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in Subsection E: 1. The court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time.
The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable.
No such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such award is made. “Marital share” means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.
2. To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.
H. In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E, the court may direct payment of a percentage of the marital share of any personal injury or workers’ compensation recovery of either party, whether such recovery is payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such recovery is payable, whether by settlement, jury award, court award, or otherwise.
“Marital share” means that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent. I. Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties pursuant to §§ 20-109 and 20-109.1.
Agreements, otherwise valid as contracts, entered into between spouses prior to the marriage shall be recognized and enforceable. J. A court of proper jurisdiction under § 20-96 may exercise the powers conferred by this section after a court of a foreign jurisdiction has decreed a dissolution of a marriage or a divorce from the bond of matrimony, if (i) one of the parties was domiciled in this Commonwealth when the foreign proceedings were commenced, (ii) the foreign court did not have personal jurisdiction over the party domiciled in the Commonwealth, (iii) the proceeding is initiated within two years of receipt of notice of the foreign decree by the party domiciled in the Commonwealth, and (iv) the court obtains personal jurisdiction over the parties pursuant to subdivision A 9 of § 8.01-328.1, or in any other manner permitted by law.
K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to: 1. Order a date certain for transfer or division of any jointly owned property under subsection C or payment of any monetary award under subsection D; 2. Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section; 3.
Appoint a special commissioner to transfer any property under subsection C where a party refuses to comply with the order of the court to transfer such property; and 4. Modify any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.
§ 20-107.3. § 20-108. Revision and alteration of such decrees. The court may, from time to time after decreeing as provided in § 20-107.2, on petition of either of the parents, or on its own motion or upon petition of any probation officer or superintendent of public welfare, which petition shall set forth the reasons for the relief sought, revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.
The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification, but only from the date that notice of such petition has been given to the responding party.
Affirmation, ratification and incorporation by reference in decree of agreement between parties: Any court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, or by a separate decree prior to or subsequent to such decree, or in a decree entered in a suit for annulment or separate maintenance, and in a proceeding arising under subsection A 3 or L of § 16.1-241, any valid agreement between the parties, or provisions thereof, concerning the conditions of the maintenance of the parties, or either of them and the care, custody and maintenance of their minor children, or establishing or imposing any other condition or consideration, monetary or nonmonetary.
Where the court affirms, ratifies and incorporates by reference in its decree such agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree, and enforceable in the same manner as any provision of such decree. The provisions of this section shall apply to any decree hereinbefore or hereinafter entered affirming, ratifying and incorporating an agreement as provided herein. Upon the death or remarriage of the spouse receiving support, spousal support shall terminate unless otherwise provided by stipulation or contract.
In any case where jurisdiction is obtained over a nonresident defendant by order of publication or by acceptance of service pursuant to § 20-99.1:1, any properly acknowledged and otherwise valid agreement entered into between the parties may be affirmed, ratified and incorporated as provided in this section. § 20-109.1. Chapter 8 – Premarital Agreement Act Application: This chapter shall apply to any premarital agreement executed on or after July 1, 1986.
§ 20-147. Definitions: As used in this chapter: “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
§ 20-148. Formalities of premarital agreement: A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage. § 20-149. Content of agreement: Parties to a premarital agreement may contract with respect to: 1.
The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; 4.
Spousal support; 5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 6. The ownership rights in and disposition of the death benefit from a life insurance policy; 7. The choice of law governing the construction of the agreement; and 8.
Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
§ 20-150. Enforcement; void marriage: A. A premarital agreement is not enforceable if the person against whom enforcement is sought proves that: 1. That person did not execute the agreement voluntarily; or 2. The agreement was unconscionable when it was executed and, before execution of the agreement, that person (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
B. Any issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. Recitations in the agreement shall create a prima facie presumption that they are factually correct. C. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement shall be enforceable only to the extent necessary to avoid an inequitable result. § 20-151. Limitation of actions: Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement.
However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party. § 20-152. Amendment or revocation of agreement: After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. § 20-153.
Prior agreements: All written agreements entered into prior to the enactment of this chapter between prospective spouses for the purpose affecting any of the subjects specified in § 20-150 shall be valid and enforceable if otherwise valid as contracts. § 20-154. Marital agreements: Married persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution.
However, a reconciliation of the parties after the signing of a separation or property settlement agreement shall abrogate such agreement unless otherwise expressly set forth in the agreement. § 20-155. Caselaw: Incorporation of the [property settlement] agreement into the decree renders the terms of the agreement so incorporated enforceable as a decree of the court.” Fry v. Schwarting, 4 Va. App. 173, 179, 355 S.E.2d 342, 345 (1987). However, a decree that incorporates an agreement permitting automatic, unilateral, or agreed upon modification of support without prior court approval is a legal nullity and void.
Kelley v. Kelley, 248 Va. 295, 298-99, 449 S.E.2d 55, 56-57 (1994). Parents cannot contract away their children’s rights to support and any provision which impinges upon the right of children to support is void, and a decree which incorporates such provision is likewise void.
Riggins v. O’Brien, 34 Va. App. 82, 538 S.E.2d 320 In order to challenge the validity of a separation agreement that has been incorporated into a divorce decree, the challenge must be brought within twenty-one days after the entry of the divorce decree.
Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 757-58 (1987). After the passage of twenty-one days from the entry of a judgment, the judgment becomes final and conclusive, absent a perfected appeal. Golderos v. Golderos, 169 Va. 496, 501-02, 194 S.E. 706, 707-08 (1938). Accordingly, any challenge to the agreement may be made only upon grounds sufficient to sustain a challenge to the divorce decree itself.
Higgins v. McFarlan, 196 Va. 889, 896-97, 86 S.E.2d 168, 173 (1955). Both parents owe a duty of support to their minor children. Code Sec. 20-61; A divorce court retains continuing jurisdiction to change or modify its decree relating to the maintenance and support of minor children.
Code Sec. 20-108; Featherstone v. Brooks, 220 Va. 443, 448, 258 S.E.2d 513, 516 (1979). Consequently, parents cannot contract away their children’s rights to support nor can a court be precluded by agreement from exercising its power to decree child support.
Carter v. Carter, 215 Va. 475, 481, 211 S.E.2d 253, 258 (1975).
best dating after a separation agreement in virginia beach - Virginia Separation Agreements
This article was co-authored by . Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. There are cited in this article, which can be found at the bottom of the page.
Uncontested separation and no-fault divorce in the Commonwealth of Virginia can be completed in as little as six months with or without the assistance of an attorney. The issues to be solved in your divorce are separation of property and child custody, support, and visitation.
Divorce based on legal grounds is more complicated and usually requires legal assistance. Search for a good family law attorney. In a divorce, you and your spouse will be a part of a legal proceeding to end your marriage relationship.
Family law attorneys deal with divorce cases regularly, so if you are going to hire an attorney, you should hire a reputable one that has handled similar cases in the past. To choose a good family law attorney, consider the following: • Find an attorney that can practice law in Virginia.
• Ask your friends and family for attorney recommendations. Ask them about any experiences they may have had, and ask for the absolute truth. • Search the internet for reputable divorce lawyers. Consider using your state bar's website; public websites like LawHelp.org; and online directories like Lawyers.com, LawInfo.com, and FindLaw.com.
• Check online reviews, which are often written by past clients who have either had positive or negative experiences. These online reviews can be very helpful and honest, so do some internet searches to try and learn about lawyers you are considering. Make a decision. Once you have researched family law attorneys and have some ideas, narrow down your list and contact your top choices.
Ask your top choices for a consultation so you have an opportunity to explain the situation you are in and the services you need. A consultation will also give you an opportunity to determine how you think you would work with the attorney. • After you have met with attorneys and researched their background and expertise, you should make a final decision on who you will hire. Choose an attorney that makes you feel comfortable, that seems to know how to handle your case, and who feels confident that they can represent you in an effective manner.
Avoid bad attorneys. While there are many attorneys in the world, not all of them are particularly good. Avoid hiring an attorney who: • Solicits you as opposed to the other way around; • Pressures you into making a hiring decision quickly; • Refuses to tell you about their background and credentials; and • Suggests that they handle the case in an unethical manner.
Consider representing yourself. If you do not feel comfortable hiring an attorney, do not have the funds available to do so, or if you and your spouse agree about the divorce, you may want to consider representing yourself throughout the process. While this is certainly possible, if you have the means to hire an attorney, you should strongly consider doing so. An attorney has a unique set of skills that can help you navigate the judicial system and can help you get want you want out of the divorce process.
If you end up representing yourself, you can always ask an attorney to review certain documents or give you limited advice. Meet the residency requirements. Before you can divorce in Virginia, at least one of the parties has to have lived in the state for at least six full months before filing. In the complaint, you will be swearing, under penalty of perjury that you meet this requirement and may be required to prove it in court.
• The easiest way to prove your residency in a state is to use your driver's license or state-issued identification card and voter registration. • Utility bills or rental receipts showing your address in Virginia can also be used as proof of residency. • If you are member of the armed forces and have been stationed outside of Virginia, but resided in Virginia for at least six months before deployment, you can used your prior residency to qualify to divorce in Virginia.
Establish separate addresses. The same documents that can be used to establish residency in the state can also be used to establish separation. Both spouses need a separate address and be prepared to prove it to the court. Living in different sections of the marital residence will not count toward your separation waiting period. • The most common grounds for divorce in Virginia is separation, often called a no-fault divorce.
The sooner you are no longer living together, the sooner the court can finalize your divorce. If you do not have children under the age of 18, you must be living "separate and apart" for a minimum of six calendar months. • If you have minor children, you must be living "separate and apart" for a minimum of one calendar year. Create a separation agreement.
This document can be as simple or complicated as it needs to be depending on the property owned by the couple. If there are no children, the agreement needs to divide the marital property and deal with the marital debt.
The legal standard is equitable distribution. This doesn't mean 50/50, it means fair to both parties. • Even though you can't formally transfer ownership of property until the divorce is complete, each party should assume responsibility for their own credit cards, vehicles, rent, and mortgages.
If one party is going to contribute financially to the other, it should be spelled out in writing. • This agreement can be changed in the final divorce. Right now, the agreement is to get you through the separation period. • Virginia allows for unbundled legal services, meaning you can hire an attorney to take your notes and draft a separation agreement for both parties to sign. The attorney can only give general legal advice on form and content. He does not represent either party.
Create a temporary child custody agreement. If you have young children, you need to draft an agreement, with the help of an attorney if necessary, saying where your children will live, a schedule for visits and holidays, and payment of temporary support. The state provides an online calculator to estimate child support during the separation period. • In the final divorce decree, the legal standard is the best interests of the child. The court expects both parents to contribute to the financial, physical, and emotional support of their children.
Establishing a pattern of communication and cooperation during the separation period is likely going to mean less judicial scrutiny and interference in your proposed custody and visitation agreements. Establish grounds for your divorce. If you don't want to wait six to twelve months to finalize your divorce, you can file immediately based on certain grounds for divorce spelled out in Virginia law.
• Adultery, sodomy, or buggery. Sodomy includes sex acts other than intercourse and buggery generally means having sexual intercourse with an animal.
To qualify as grounds for divorce, the acts must have been committed outside the bonds of the marriage and without the knowledge, consent, or participation of the spouse. • The deviant sexual behavior grounds are extremely rare.
Adultery is still a critical issue in Virginia because it is the one reason for divorce that can bar a spouse from receiving alimony. • If you are using the sex-act based grounds, you must not have lived together from the time you found out about the act and you must file for divorce within five years of discovering the act.
• The spouse alleging one of these grounds must provide evidence that is satisfactory and conclusive to the court.
An eye-witness is not required, but testimony must be corroborated. • Conviction of a felony. A party may obtain a divorce on the grounds that the other party was convicted of a felony after the date of marriage and sentenced for a period of a year or more. • When choosing your grounds for divorce, be aware that certain defenses may be available to a spouse accused of adultery, sodomy, buggery, or conviction of a felony, such as that the other spouse willfully cohabited with him or her after discovering the adultery, sodomy, or buggery or after the convicted party was released from prison.
Consult a family law attorney. The procedures to prevail in a contested fault-based divorce are complicated and open to counter-claims and allegations, both true and unfounded. If you have children, their custody and well-being can become a point of argument and contention.
Before you start down a path that you can't change, talk with a good family law attorney about your rights and responsibilities. Choose the type of divorce you want. Virginia has two different types of divorce under the law. The first is akin to a legal separation in other states, the second is the tradition dissolution of the marriage contract. • "Divorce from Bed and Board." This legal action preserves the legal marriage, but acts as to divide property and settle child custody and visitation.
There is no waiting period for filing this action, but there must be a clear showing of desertion and cruelty. The separation cannot be mutual. The lack of mutuality requirement is what separates this type of divorce from a legal separation. • "Divorce from the Bond of Matrimony." This is the traditional divorce and requires either the 6 to 12 month separation or a showing of grounds. Draw up a petition for divorce. You will need to file for either type of divorce in the county where you or your spouse lives.
Because of the different types of divorce and the grounds for divorce in Virginia, the style of the divorce petition can be complicated. You have several options. • For an uncontested divorce based on separation of 6 months for childless couples and 12 months for couples with children, you can use the from Legal Aid of Virginia. These forms have been created and vetted by lawyers familiar with the laws of Virginia.
• Check with the court clerk in your county. Some courts have fill-in-the-blanks form packages for sale. The cost is usually under $10. However, these packages will likely be for uncontested divorces based on separation. You can attach the separation agreement you and your spouse have been living under to the petition. • For a fault-based divorce that is likely to be contested, it is highly recommended that you contact a family law attorney.
Even if you don't hire them for representation, Virginia law allows attorneys to provide document preparation services. Fault-based divorce petitions must include properly pleaded allegations of the grounds that can pass the court's scrutiny. • If you are seeking a divorce from Bed and Board, you should seek legal advice and assistance with document preparation.
This interim divorce not only lets you circumvent the waiting period, but also allows you to maintain benefits such as employer health insurance through your absent spouse. It must be pleaded carefully and correctly. Verify that your petition covers all subjects. While a petition can be amended, it is better to cover everything in the first document. You will be serving this document on your spouse.
Amended petitions will require either agreement or new service. If your spouse moves or fights you, getting new service on an amended petition can be difficult. • Division of property.
Not only will you need to decide how to divide up your real estate and vehicles, but also your investments, bank accounts, household goods, sentimental items, retirement accounts, and any other personal property. • Distribution of debt. Generally a party who will keep a piece of property which is securing a loan, such as a car or house, will also keep the debt that goes along with such property.
Other debt should be distributed based on each party’s contribution to the debt, ability to pay, and the amount of property he or she will receive in the divorce. • Child custody and visitation. If you have minor children, you should try to come to an agreement on both physical and legal custody, as well as visitation for the noncustodial parent. Physical custody refers to where the child lives.
Legal custody to the parent who can make certain decisions for the child such as where he will go to school, church, or what doctors he will see.
• Child support. In the state of Virginia, there is a presumption that one or both parties should pay child support, even in shared custody cases. To be sure that the court accepts any agreement you reach on the payment of child support, use the provided by the Virginia Courts. Consider mediation. Before you file and serve your divorce petition, think about trying mediation.
During a divorce mediation procedure, an impartial third party will help you and your spouse reach an agreement on the issues relating to your divorce.
Mediation will help you and your spouse stay in control of the issues surrounding your life (e.g., property separation, child custody, and spousal support) as opposed to leaving decisions up to a judge. Unlike going to court, in mediation, no decision is forced upon you and the mediator is only there to help guide you through the process.
• First you will need to find a mediator. Try looking in the Yellow Pages, or you might ask your therapist or attorney for advice. In some jurisdictions, the court may be able to appoint a mediator for you. • Next, the mediator will have an orientation meeting with you and your spouse. During orientation, you will learn about the mediation process and the mediator him/herself.
• If you like the mediator and the process that was described, you and your spouse will sit down with the mediator a number of times.
During these meetings, the mediator will guide you through discussions about the divorce. • If you and your spouse come to a divorce agreement with the help of the mediator, an attorney (or the mediator) will draw up a memorandum of understanding, which spells out the decisions you and your spouse agreed upon. This memorandum will then become the basis of your divorce. • If you and your spouse are unable to agree during mediation, you may need to continue the process of filing for divorce in court.
File and serve your divorce petition. You can file the petition in either the county where you live or where your spouse lives. If the divorce is uncontested, you and your spouse can both sign the papers and attach a waiver of service form. Otherwise, you can contact the sheriff or a private process server to deliver the divorce petition to your spouse.
• You must pay the fee at the time of filing or the clerk will not accept it. • If you are low income, you may qualify to have the filing fee reduced or waived. Ask the court clerk how to proceed in forma pauperis and file the appropriate form and financial information.
Attend your court hearing. If you and your spouse have agreed and both signed all of the documents, your court hearing should be short and to the point. The judge will review the documents and agreements and ask you and your spouse some questions. If your spouse does not attend, the judge will enter the orders as agreed. If the divorce is going to be contested, the judge will schedule additional court dates, leading up to the trial.
• Be on time. Give yourself plenty of time to get to the courthouse, park, and find the courtroom. If you are not there when your case is called, it may be rescheduled or shuffled to the end of the docket. • Arrange for childcare. Many judges do not allow young children in the courtroom and they cannot be unattended in the hall.
• Stand when you are questioned and answered clearly so the court reporter can hear you. If you do not understand a question, ask the judge to explain.
In Virginia these days (and probably almost everywhere), most people get uncontested, no fault divorces. It’s a practical matter as much as anything else; uncontested, no fault divorces are the quickest, easiest, most cost effective divorces.
So, how do you get an uncontested, no fault divorce? There’s really just one way: a separation agreement. So, what’s a separation agreement?
A separation agreement is a legal contract. It’s unique to the divorce process, and it divides everything from the marriage. All the assets, like the retirement accounts, including stocks, bonds, mutual funds, 401(k)s, IRAs, pensions; bank accounts; real estate; cars, boats, airplanes, RVs, and jet skis; kitchen appliances, linens, furniture, computers, TVs; and more.
It also handles child custody, support, and visitation. In a separation agreement, you’ll also determine spousal support, if an award is warranted in your case. You’ll divide any business owned by a party or parties to the marriage. You’ll also divide any liabilities, including credit card debt, loans, lines of credit, mortgages, or other debt. The catch? You’ll have to draft a separation agreement that your husband will sign.
(Or, vice versa, he’ll have to draft one that you’re willing to sign.) How do I get a separation agreement? The good news is that, if you really want a separation agreement, you have a number of choices when it comes to how you want to get one.
There’s not just one way; there are a number of different ways, depending on what you think will work best for you, that you can get one.
Another good thing? You have a lot of freedom when it comes to the terms of your agreement. Though most attorneys have form agreements that serve as a starting point, you can work together with your attorney to come up with specific terms that suit you. We often tell our clients that the only limitation, when it comes to a separation agreement, is the creativity of the drafters. What do you care about most?
You know, of course, that everything that belonged to you during your marriage is going to be divided. A separation agreement lets you craft a way for you to walk away from your marriage with the 50% that means the most to you.
Not only that, but it allows you to really maximize the value of that 50%. Think about it. If you go to court and let the judge decide, not only do you have no control over which 50% you get, you’ve also spent, in most cases, tens of thousands of dollars in attorney’s fees to get there—which, basically, means that there’s tens of thousands of dollars less to divide anyway. Not where you want to be at the end of your divorce? Feel like you’d prefer to have that money available to be divided between the two of you?
Sounds to me like a separation agreement is the best option for you. Now that you’ve decided to move forward with an uncontested, no fault divorce (by way of a separation agreement), it’s time to consider how you’ll get your separation agreement in place.
You have a couple of options. With an attorney You probably already know this, but you can definitely hire an attorney to help you get your separation agreement drafted. Did you know, though, that, when it comes to hiring an attorney, you have two different options—both of which will help you prepare a separation agreement?
Negotiation Probably the most common way of getting a separation agreement in place is through a process that attorneys call negotiation. When you negotiate a separation agreement, you hire an attorney to draft an agreement on your behalf, and then negotiate back and forth with the other side (with your husband personally if he isn’t represented by counsel, and through the attorney if he is represented) until you reach an agreement you’re comfortable signing.
The goal? Getting the best agreement in place. It’s an adversarial process (as opposed to a collaborative case), but it’s not nearly as adversarial as going to court. Collaboration You can also hire an attorney to pursue the In a collaborative divorce, both you and your husband have to commit to collaboration and hire collaboratively trained attorneys. You’ll also make a pledge not to go to court, and to lay all the information out on the table—no costly discovery processes (like in a contested divorce) here.
You’ll also hire a divorce coach for each of you, and share a child and a financial specialist to help the two of you reach an agreement that reflects both of your priorities. The goal? Coming up with a separation agreement that is in both of your best interests, and helps the two of you get what you need to move on.
Mediation In mediation, you and your husband can work with a mediator (one mediator, shared between the two of you) to reach an agreement. It’s like negotiation, in that you go back and forth to reach an agreement. But it’s also unlike negotiation because, instead of having an attorney on your side to represent your interests exclusively, the mediator’s job is not to educate you about the law, what a judge might award, or what women in other similar circumstances have been able to get.
It is the mediator’s job to help you reach an agreement—that’s it. Do it Yourself Divorce You’re also welcome to draft and negotiate a separation agreement on your own. In Virginia, you can represent yourself in your own divorce case, so there’s nothing stopping you from putting pen to paper (or, you know, fingers to the keyboard) and drafting something up yourself. Of course, as you know, there are some risks to that as well, especially if you don’t know the law, don’t know what you’re entitled to, and aren’t a very skilled writer or negotiator.
What if he won’t sign? That’s the risk. That’s the risk all of us take, whenever we decide to start a divorce by drafting a separation agreement.
There’s nothing I can do (or you can do) to make him sign. If he doesn’t sign, you can go back to the drawing board and come up with another solution (like, negotiate, and work from there), or you can file for divorce. If your husband is particularly pigheaded and refuses to negotiate any agreement whatsoever, you may find that you have to go to court, regardless of what you might prefer to do. A separation agreement is nothing but a bunch of paper with ink on it until you reach a point where you’re both willing to sign.
If he won’t, and you still want to move your case forward, you may need to file for divorce. Though you can technically represent yourself in even a contested divorce case in Virginia, I really wouldn’t recommend it.
The court procedure is complicated and constantly changing, and it would be very difficult (if not virtually impossible) to successfully represent yourself. Keep in mind that a divorce is one of the biggest financial transactions in most adult’s lives. You need to tread carefully and keep in mind that your inclination to save money where you can shouldn’t be at the expense of tens of thousands (or, potentially, even more) of assets that you would have received or argued successfully for—if you had an attorney on your side.
If I sign, can I change my agreement later? Probably not. That’s the thing about contracts. Once you sign them, they’re valid. And you can’t really un-sign them later, because that wouldn’t be fair to the other side.
If, whenever you signed a contract, you always worried and wondered whether, after you did whatever it was that you promised to do, the other side was going to try to un-sign it, contracts would be a lot less effective as a means of conflict resolution. Why does this matter? Well, for a lot of reasons, but mostly because it keeps people out of court. Courts (and judges) have a vested interest in encouraging people to settle their own disputes and reach mutually agreeable solutions.
It keeps those people out of court, and prevents them from taking all of the court’s time to solve things that they are capable of solving for themselves. No one would ever rely on a contract to settle a dispute if they knew that it would be easily overturned later. Courts don’t want people to be worried about reaching an agreement, relying on that agreement, or performing whatever they promised to perform in their agreement.
So, in order for an agreement to be overturned, a number of things have to happen. First, the agreement has to have been made under duress. An example? If your husband made you sign with a gun pressed to your forehead. But duress isn’t enough on its own. Duress has to be combined with unconscionability, meaning that your agreement is so bad that no reasonable person would have signed it.
That means, basically, that your agreement has to give everything there is to him, and leave nothing for you. Otherwise, even if what you receive is something small, especially in comparison to what your husband walks away with, it may look like whatever you received was so important that you were willing to give away everything else to get it.
In other words, it looks like a bargained for benefit. Maybe it’s not, but the court won’t engage in a lengthy discussion on what is (or should be) important enough to someone that they would bargain to receive it. So, to make a long story short, there are a number of ways in Virginia that you can get a separation agreement in place.
Most people choose to hire an attorney and negotiate an agreement, mostly because it’s the cheapest, easiest way to get one in place AND be protected. An attorney will review your agreement, advise you about your rights under the law, educate you about what you can expect to receive, and even prepare you in the event you decide to take a particular issue to court.
For more information about separation agreements or to schedule a meeting with one of our attorneys, give our office a call at (757) 425-5200. We’re here to help! Filed Under: , , , , Tagged With: , , , , ,
Me and the Wife Separated