The Separation Agreement can be the most important document in a Virginia divorce case. The problem is that it is also a misunderstood document. In reality, most divorce cases end up involving a Separation Agreement at some point.
The best way to explain a Separation Agreement is to first and foremost refer to it as a MARITAL AND PROPERTY SETTLEMENT AGREEMENT. If you think about it that way, a Separation Agreement really is a document (contract) that is agreed to by you and your spouse – and when it is signed – it settles all of the issues of your marriage and the property owned by you and your spouse. Some people enter into a Separation Agreement long after they have been separated. Some people aren’t even separated yet when they enter into a Separation Agreement. This is exactly why the term “Separation Agreement” can be so confusing.
The Separation Agreement does not necessarily begin a formal separation period. It is possible to sign a Separation Agreement and simultaneously begin a formal period of living separately, but one is not contingent on the other. A separation period begins when one spouse decides to permanently end the marriage and then begins living separate and apart from the other spouse. There are many factors a court will look to when reviewing a separation period. How you actually “live separate and apart” should be discussed with an attorney to make sure you have properly begun a separation period – and remained separated - for the required amount of time in order for a Judge to grant a divorce. There is no document that necessarily needs to be signed to start a separation period in Virginia. That is yet another reason why the term “Separation Agreement” is so confusing.
So what is a Separation Agreement?
Specifically, a Separation Agreement is a document in which you and your spouse contractually agree upon a division of your marital property and other assets and investments, terms of spousal and child support as well as child custody matters, pension and retirement allocations, insurance coverage, tax planning, and many other important issues arising from your marriage.
It is therefore extremely important that YOU DO NOT SIGN ANY DOCUMENT WITHOUT HAVING AN ATTORNEY REVIEW IT. One of the major benefits of a mutually agreed upon Separation Agreement is that a court will almost always adopt the reasonable compromises you and your spouse have agreed upon and will respect your decisions about child custody. It is intended to be a final settlement of all issues between you and your spouse.
Military pensions can be addressed in a Separation Agreement and how the pension will be divided among the parties. It is sometimes agreed to in the Separation Agreement and then followed up with a Military Pension Division Order. It is important to properly discuss this in a Separation Agreement and also how Survivor Benefit Plan coverage can be implicated. As discussed in the SBP link on this website, Survivor Benefit Plan (SBP) coverage is not a division of the military pension. SBP is an annuity (for the surviving designated spouse, ex-spouse, or qualifying children) that replaces the pension when the service-member dies. Vague wording in your Separation Agreement regarding the pension, will not preserve SBP coverage.
Here is something else very important about Separation Agreements…When something cannot be agreed to – such as spousal support or pension division – it should not simply be left out of the document. This is why it is extremely important for your attorney to review the terms of your Separation Agreement with you. Many Separation Agreements contain a “general release clause.” What this means is that any issues that are not specifically addressed in the document can, and may, be forever waived. So, for example, if your spouse is the primary wage earner in your family and his or her attorney made sure that a release clause was in your Separation Agreement, and you do not specifically write in the Separation Agreement, “the parties cannot agree on spousal support; therefore this issue is reserved for later agreement between them or for a court decision on the matter” (or some other similar reservation clause), then you may have just waived spousal support. At the very least, it could be very expensive to re-litigate an issue or issues that could have been more proactively and constructively addressed.
IT IS VERY IMPORTANT THAT YOU DO NOT SIGN ANY DOCUMENT WITHOUT HAVING IT REVIEWED BY YOUR ATTORNEY
There are many benefits to entering into a properly drafted Separation Agreement and it can often mitigate the costs, risks and stress of a divorce case. As mentioned, a court will often adopt the reasonable compromises of the parties and respect many decisions that a couple comes to on their own. A child’s best interest is always looked to by the courts – and if the parties can agree to a custodial arrangement, this can remove a major obstacle that is often the subject of costly and lengthy litigation.
Another benefit to a signed Separation Agreement, is that the parties can be more creative and stipulate (or agree) to do things beyond the court’s normal jurisdiction. Once the parties agree (in writing) to be bound by the terms of the Separation Agreement, a court will often force the parties to abide by those terms – even if the terms were beyond the court’s normal jurisdiction. For example, Virginia law generally holds that a parent does not have a duty to pay for his or her child’s college education. However, if the parties agreed in a signed Separation Agreement to split the costs of college (or for one party to pay more than the share of the other party), this will most likely be enforced by the courts even if the parties later change their minds!
In sum, a Separation Agreement can be a powerful tool in any divorce case. While many cases appear similar, the specific facts of every case are different. How those facts relate to Virginia law can also be unique. On top of that, a carefully constructed Separation Agreements can be 20 or more pages long and contain complicated covenants, representations and legal clauses. It is extremely beneficial to have an attorney draft and/or review this document before you sign it. Upon a final divorce hearing, a Separation Agreement can be incorporated in the divorce decree – which means it becomes an order of the court. The court will then have the same contempt powers over the enforcement of the Separation Agreement as it would have over any other divorce decree (or order of the court). This means that if either party fails to perform his or her obligations under the Separation Agreement, he or she can be held in contempt of court. The courts can actually be utilized to enforce the terms of the Separation Agreement.
To reiterate, Separation Agreements can be extremely beneficial in a divorce case. These documents can also be lengthy, wordy and complicated. Many rights can be preserved and lost…and sometimes permanently. A military divorce in Virginia often has many more issues to address than a generic divorce case among two civilians. It is important to work with an attorney who has an in depth understanding of the military issues AND an in depth knowledge of Virginia law. On top of all of that, some of the issues addressed in a Separation Agreement can have long range effects on you and your children. There can be custody issues, on-going tax issues, and a host of other items that should be discussed with your attorney or tax advisor before signing a Separation Agreement. It is also extremely important to only sign a Separation Agreement after it is has been reviewed by your attorney and only when you are certain you are willing to be permanently bound by the terms.