Can You Write Your Own Separation Agreement in Virginia?
Updated: Nov 16
When we are having a consultation with new clients, it happens that some people ask the question – can I write my own separation agreement in Virginia. In trying to maintain our desire to provide straight forward answers, I will answer like this – yes, you can write your own separation agreement in Virginia. The next question is how do I write my own separation agreement. The following question is (or should be) should I write my own separation agreement in Virginia. Let me try to answer those as well.
First, we need to define what is a separation agreement in Virginia. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.
So when we say that you can write your own separation agreement we are being completely candid. Virginia does not require a formal form or format for a separation agreement. There are very few “magic words” that need to be in a separation agreement for it to be valid. There have been instances where people download “examples” from the Internet and copy that form as a separation agreement (which is a really bad idea since you have no idea who wrote it). There are also people that handwrite their own separation agreement and submit that to the Court for entry with the final Decree of Divorce. This is acceptable as well. If memory serves correctly, I believe that the Virginia Courts have affirmed a separation agreement written on a napkin at dinner. Now I do not suggest that you do this as it may not work and is definitely not the smartest way to draft a separation agreement.
The next question is – should I write my own separation agreement? Again, trying to be as candid as possible my recommendation is as follows – NO you should not write your own separation agreement. Kind of harsh words and, perhaps, a little self-serving since we pay our bills by drafting separation agreements for folks all over Virginia and beyond. Yes you probably should hire an attorney to draft your separation agreement as opposed to leaving it to chance. Again, you do not know who drafted the template, have no clue if it was valid in Court (as there are provisions that the Court cannot enter; that is for another post), nor whether it actually applies or covers the aspects of your case that you want covered.
A separation agreement should be as inclusive as possible. Since the separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be over inclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.
Let me put it another way – if you think that I or almost any lawyer can come in and do your job as well as you without any training or experience except what an Internet search shows, then go for it. That may sound harsh but I firmly believe it – I cannot do your job as well as you can. Lawyers have education, bar exams, Continuing Legal Educations seminars, books written for lawyers, and experience in drafting as well as litigating separation agreements in Virginia. I am not trying to be sarcastic and, to be honest, you are free to go see any lawyer in Virginia to draft your separation agreement. Meaning I am not saying this to try to get you in the door. I firmly believe it. A good, experienced attorney will be able to discuss your particular situation, give you options, answer your questions, and then draft something that accomplishes your goals. We also have to take into consideration which Court you may end up in as different courts treat cases and handle issues differently. It can even vary from judge to judge in the same Courthouse! This is where an experienced lawyer as well as office staff can be of service better than any do-it-yourself website.
Having dealt with these issues for many years an experienced attorney can also help you try to predict variables and problems. This is extremely important because we are talking about your life. An easy example of contemplating a variable is this – a couple wants to get divorced and drafts their own separation agreement; they jointly own a house; they agree that Spouse 1 will either sell the house and split the equity with Spouse 2 or that Spouse 1 will buy out the equity of Spouse 2 and remove Spouse 2’s name from the house. There are three (2) issues that most lay people may not see at first blush. First, what is the timetable? Without one defined it could be twenty (20) days or twenty (20) years before Spouse 1 does what was agreed to in the separation agreement. This leaves Spouse 2 on a mortgage and deed along with the financial obligations that come with home ownership. Second, what is the date of valuation of the house? By this I mean what date does the equity to Spouse 2 become final. Again it could make a huge difference if it is twenty (20) days or twenty (20) years. Third, if Spouse 1 does a refinance how much equity goes to Spouse 2? When a house is sold there are costs involved that come out of the seller’s proceeds or equity. If the home is refinanced the amount needs or should be calculated regarding closing costs so everyone knows how much each person is going to get. Again, this is a barebones and example so please do not take it as legal advice or a tutorial. It is meant to illustrate a point that may not be apparent from “form” or “template”.
Now that you know about whether you can write your own separation agreement you may have another question about whether a separation agreement is required in Virginia. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.
I am not trying to scare you with this post. I am simply trying to answer the question that brought you here – can you write your own separation agreement in Virginia. The short answer still remains yes, however, that does not mean it is a good idea.
I hope that this answers some of your questions at least regarding whether you can write your own separation agreement in Virginia or at least it gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link.
For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
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If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.
And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.
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