Separation Agreements in Virginia
A separation agreement is a document signed by both spouses who intend to live apart. Typically, they can contain any terms that don’t violate public policy or the law. They frequently address all aspects of spousal support, child support, health insurance, custody, debt responsibility and distribution of property. However, it’s also not uncommon for a separation agreement to be sparse. Some may only address the basic elements, such as providing a timetable for the move-out date.
The purpose of a separation agreement is to allow the parties to define their obligations and rights as spouses who no longer live under one roof. It also protects against the waiver of important entitlements pursuant to Virginia family law statutes. For example , if you did not have a meaningful estrangement, you cannot file for divorce until one year of living apart has passed. If one spouse files without an agreement, a judge may order them to move back in together until all issues are decided. A separation agreement can withstand judgment from the court system, allowing you to avoid the expense of a contested trial. Even if you can’t resolve all issues, the court may use the agreement as an outline of the parties’ negotiations.
Legal Remedies if Your Husband Won’t Sign the Documents
If you cannot get your husband to sign a separation agreement, there are a number of other options, and some decrease the amount of control he has over you and your family’s future. They include:
Negotiation Techniques: Negotiating is usually the first step. I have had great success with negotiating via email or text using a bullet point list that details the terms as the wife wants the terms to be. The email or text concludes with a question like "Did I capture your position correctly?" If your husband has an attorney, her response will almost always include confirming what her client’s position is. From that response, you and your attorney will be able to move forward, whether the negotiation includes a conference call or in person meeting, or whether it just means refining the points until everyone agrees in writing.
Mediation: Regardless of the situation, sometimes the husband is not the right person to rely on to carry the work forward. This can happen because he isn’t strong enough or because he is too unpredictable, and it may be better to rely on a professional mediator. This is even more important if there are children involved and those children are of the age where their wishes (if properly communicated) can have a significant impact on the results. Even if there are no children involved, perhaps your husband’s personal habits are so erratic that his inability to rationally move through the process puts your own future at risk if left in his hands.
Legal Mediation is much more formal than a regular mediation session designed by the parties. The lawyers agree to determine the issues in the case and to come up with a list of those issues to be mediated. When mediation starts, each person has two, uninterrupted minutes to explain his position. At that point, the mediator, with the ability to suggest resolutions, moves from person to person to help resolve the issues. If some of the negotiated points do not involve lawyers (meaning they are simply about parenting procedures or other limited matters), the mediator creates an agreement for those points, without legal inclusion of the language. The language, once drafted, then goes through the attorneys, with Senator Ryan-like decimal points and manuscript edits until the language is properly reflected in the agreement. That will become the basis for the agreement of separation.
If you go through the above process and have not gotten your husband to sign, then you have to consider the possibility of going to Court.
When Your Spouse Won’t Cooperate: Virginia Law Explained
In Virginia, if your husband refuses to sign a separation agreement, the most likely outcome will be that you cannot negotiate a separation agreement before he files on his own. Besides seeking court intervention by filing your own divorce complaint before he files or bringing him to the negotiating table prior to his filing, there is not much you can do to convince an unwilling spouse to sign a separation agreement. Unlike other states, Virginia does not provide for a legal separation. The law in Virginia is clear that if you and your husband have separated for the requisite one year (or six months if there are no children and your separation agreement is filed within six months of your separation) you may then proceed to a no-fault divorce without any agreement to file. If your husband is really against signing a separation agreement and using the benefit of a negotiated deal, you can still obtain a divorce based on nondisclosure of assets, fraud in the inducement or "guilty of such conduct as to make it improper or immoral for him to continue living with you." In such a case, your husband would be guilty of adultery and would have to prove that the adultery took place. Other than that, you are stuck either relying on your husband to initiate the divorce process and work out the terms before he files his own complaint, or else filing for divorce without the benefit of an agreement in place.
If He Won’t Sign, Can You Still Separate?
Suppose you and your spouse are unable or unwilling to reach a separation or property settlement agreement. The Law in Virginia does provide some alternatives to achieving a legal separation.
First, Virginia allows for a period of "living separate and apart" (essentially, by just doing it) without cohabitation or interruption for one year, or if you and your spouse sign a separation agreement which divides your property and there are no minor children between you, for only six months.
Suppose your spouse leaves the marital residence with the intention to be separated. That may qualify as legal separation, but this fact alone does not mean that you’re now entitled to VREAP. In Virginia, there’s no such thing as "trial" separation. Trial separation, or as some lawyers call it, "rehersal" separation-where you stay separate and apart for an extended period of time, hoping that the trial turns out positively to the point of reconciling your marriage, will not preserve your right to pursue a divorce on the ground of living separately thereafter . In other words, you cannot serve your spouse with divorce papers after a year of living apart, and then suddenly decide that you want a reconciliation (or that it’s just too expensive or difficult to get a divorce), and later fall back on your trial sep as you last remaining straw.
Second, Virginia recognizes several "unilateral divorce grounds." These include abandonment or desertion; physical cruelty or substantial mental cruelty; adultery; felony conviction and incarceration; and felony conviction and "infamy." Note that the last ground has been applied to instances of bigamy, child molestation and living under an assumed name to defraud the other spouse.
Therefore, if your spouse commits adultery, you are entitled to a divorce on the ground of adultery, whether they sign an agreement or not. Such grounds are often accompanied by tender years considerations, such as when a wife of children under the age of 18 wants to have a divorce in hand before filing a petition for custody. Note that adultery is punishable by a Class 4 felony in Virginia. While bigamy and child molestation are also considered felonies in Virginia, they can be punished more severely than adultery (in fact, bigamy is a Class 5 felony, which can net a 10-year jail term).
Consider Consulting an Attorney
As this article has previously highlighted, negotiation is the key to separation. Separation in Virginia does not require a separation agreement, but having one protects each spouse and eases the process of divorce once separation becomes permanent.
On occasion, one party may refuse to sign a separation agreement or negotiate in good faith toward resolution of ongoing temporary issues such as child custody/support or spousal support. It may also be that one spouse refuses to provide complete financial disclosure, thus preventing any real negotiations. You are not alone if you find yourself in this situation, and there are ways to gain leverage over your spouse to get him to negotiate and ultimately agree to sign the agreement.
For example, often times one spouse is fearful that signing an agreement means that you will go forward with a divorce. Retaining a divorce lawyer to represent you and proceeding with a lawsuit against your spouse often results in a change in attitude as he begins to understand that you are serious about moving forward. Many times ongoing disputes end after retaining a lawyer, so this is a worthwhile exercise.
Another tactic is filing for equitable distribution before separation. By deed, a spouse can gain a legal interest in the marital residence even if he or she has no title. As a result, the other spouse who has title may be reluctant to begin the separation process out of fear that he will lose the property unless he signs the separation agreement. Court intervention will often force the parties to the table to negotiate acceptable terms.
Hurdling the obstacle of a spouse refusing to sign a separation agreement is best approached with the guidance of a lawyer who practices family law regularly.
Preparing to Live Apart
While a contested separation may leave you feeling lost and without a plan, moving on is possible. First and foremost, you should contact an experienced divorce attorney who can help you with the details of your case. The right family law lawyer can do more than draft an agreement. She can walk you through your goals (financial, child custody, and long-term) and help you understand how your case can play out in court or through negotiation.
Financial Planning
If you are not sure where you want to live, think about a few options. If you are currently renting, can you renew your lease? If you have a mortgage, do you want to live in the house for the foreseeable future (and make payments if he fails to do so), or do you want to sell it and split the equity? If you can sell, consult a realtor.
If you are going to move out, how much can you afford to spend on a new place? You need to consider both your principal and interest obligations as well as property taxes and insurance costs. The expenses associated with homeownership are often surprising.
How much money can you spend on bills and groceries? Have you shared finances in the past? This is one of the first questions that your lawyer will ask when you go in for a consultation about divorce.
When it comes to managing money, understanding your cash flow, calculating your net worth, estimating your spending needs, and determining your assets and liabilities, there a variety of free and low-cost resources available in Virginia. If you have a local library in your area, you may be able to access budget and net worth worksheets as well as books on topics such as financial planning and child custody mediation . The United Way also provides free online resources, and the Virginia Cooperative Extension partners with organizations like the United Way to provide classes on a variety of topics including budgeting, cooking, and even parenting.
Child Custody
Before you file for divorce, you should be thinking about your plans for your children—including where they will live, how you will pay for their needs, and what kind of custody arrangement you want. Even after filing, if you and your husband can get on the same page, it may be easier to negotiate your agreement. If you cannot agree on anything, think about the agencies that can help you.
The Virginia Department of Social Services offers access to free programs that help families struggling with separation and divorce. The Divorce Orientation & Parent Education Program, for example, offers free counseling to couples seeking to divorce. These programs come to certain Virginia counties on a rotating basis, so you may want to look into their schedule to see where and when they are running near you.
Virginia Cooperative Extension also offers a pre-marital and remarriage program called Smart Steps, which may help you with your relationship. Additionally, if spousal support is likely to be an issue in your case, you may want to consult a vocational rehabilitation counselor who can help guide you through vocational assessment. You may also have questions about health care coverage for you and your children (coverage through your work plan, through your spouse’s plan, or through Medicaid or FAMIS), especially if you have been out of the workplace for a while.