Untangling the details of a marriage and shared life can be complicated, and there are many issues to be addressed. First, it should be noted that there is no requirement that a spouse “file” for legal separation in Virginia.
So, in Virginia what is legal separation?
If you are married and living separate and apart from your spouse, where at least one of you has formed the intention to permanently separate, you are “separated” under Virginia law. There is nothing to file and nothing you have to sign to show you are legally separated in Virginia.
Do I Need a Separation Agreement in Virginia?
If you and your spouse are separated and can agree on many or all of the issues to be addressed in your divorce, it would be a good idea to capture that agreement in writing as a separation agreement.
This will make the divorce process smoother and simpler for you both, and, in the long run, less costly.
Typically, a separation agreement will address the following:
- Real Estate. The separation agreement should clearly state the status of any real estate owned during the marriage–who will own it going forward, who will occupy it, or whether it will be sold and how the proceeds will be divided; as well as how bills related to ongoing ownership (utilities, maintenance) will be paid/allocated between the spouses if not sold.
- Personal Property. The separation agreement should describe in detail how any personal property and financial assets (including savings accounts, retirement accounts, and any property obtained through inheritance or gift) will be divided, or how the proceeds will be divided if any personal property is sold. It should also include who will maintain control of or access to bank accounts or if joint accounts will be closed. Personal property that is owned solely by one of the spouses will not be affected by the separation agreement.
- Debts. The agreement should identify who will be responsible for paying any debts accumulated during the marriage, including mortgages, car loans, credit cards and student loans.
- Spousal Support/Alimony. After a consideration of many factors (for example, the length of the marriage, the standard of living established during the marriage, any disparity in income between the parties, etc.), the agreement may contain a provision for spousal support/alimony, including how much will be paid, for how long, and any future circumstances under which that support will change or terminate.
- Minor Children. The separation agreement should describe in detail any arrangements related to minor children, including physical custody, legal custody, and visitation (or parenting time); as well as any financial obligations related to the children, such as child support, health insurance, medical expenses not covered by insurance, and payment of child care. The agreement can also contain provisions about the payment of private school tuition, college tuition, visitation travel costs, and extra-curricular activities.
- Enforcement. The separation agreement may include specific terms as to the remedy or consequences should one of the parties breach the agreement, including the payment of the prevailing spouse’s attorney’s fees in the event of a breach of the agreement. The agreement can also form the basis of a future court order entered as part of the divorce which would then be enforced using the court’s contempt powers.
While not required, it would be advisable for each spouse to have their own attorney to at least review the separation agreement, if they don’t already each have attorneys who assisted in the negotiation and drafting of the agreement, in order to protect his or her own separate interests.
Advantages of a Separation Agreement
Entering into a voluntary, written separation agreement can reduce friction between the parties going forward, save a significant amount of time and money, and ensure some level of predictability for divorcing spouses and their children.
Moreover, once signed and notarized by both parties, the separation agreement constitutes a legally enforceable contract.
Schedule a Consultation with Evolution Divorce
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Here's what it will look like at your initial consult:
- LISTEN: At your consultation, we will take time to listen to your situation.
- COLLABORATE. We'll collaborate on a plan and pricing agreement, so you always know what to expect and are never caught off guard.
- GUIDE. We guide you through the divorce process.