Updated: Apr 3
Quite frequently, people contact our office and ask us is a separation agreement required in Virginia? We are happy to answer them with the simplest answer there is – no. So no, a separation agreement is not required in Virginia. A separation agreement is not required for parties to be separated in Virginia. A separation agreement is not required for the parties to get a divorce in the courts of Virginia. So why should someone have a separation agreement or what is the benefit of a separation agreement in Virginia? Let me explain.
To explain it, we must first define a separation agreement. 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 take 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 now that you have a general overview you might be asking “well, what exactly is a separation agreement?”. This is a fair question. 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 overinclusive 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.
So the question that drew you to this post is whether a separation agreement is required in Virginia. Again, the answer is no – a separation agreement is not required in Virginia to get a divorce. An oversimplification that might be easy to understand is this:
There are two types of divorces in Virginia – contested and uncontested. The easiest way to state the difference between the two is whether there is a written separation agreement (again also known as a Stipulation or Property Settlement Agreement) that addresses everything and the Court does not have to decide anything. As the parties have worked everything out it is an uncontested divorce. The Complaint is filed along with some other papers, there are a couple of additional filings, and it is all sent to the Court for the Judge to sign. This is where the settlement agreement comes into play – the Court knows from the moment the case is filed that there is nothing to argue about or for it to decide.
A contested divorce is one where there is no written separation agreement, an incomplete written separation agreement, or a separation agreement where one person wants to change the terms of child custody, child visitation or child support. Again, this is an oversimplification as there could be other issues that the parties could require help with from the Courts.
So do you have to have written separation agreement to have an uncontested divorce? No but it sure helps. A Complaint for divorce can be filed with the Circuit Court and if both parties sign the Final Decree of Divorce then, usually, the Court will enter that Decree and the divorce is granted. Now there are some steps in between but I hope that you did not think that this post was a “do it yourself” turorial on how to do your own divorce. This post is not even designed to give you specific legal advice. Each case is different and what may work for one case may not work for other cases. This is why we offer free initial consultations with a lawyer – so you can get fact specific advice to your case.
Now you are probably asking yourelf (or want to ask me) – if I don’t have to have a separation agreement in Virignia why should I get one. Three simple reasons (and I will save the best for last). First, you and your spouse are controlling all aspects of your divorce. How you live your life, your finances, and even parenting your children is controlled by you as opposed to two or three lawyers and a judge. Ist this good enough reason? If not, then the second reason should help. Second, it is quicker for you to get divorced. The Court knows from the moment that the divorce case is filed that it is uncontested. This means that it is a matter of pushing paperwork through the Court. No hearings, no motions, no settlement conferences. It makes everyone’s lives easier. Now the final reason may be the most attractive of all. The third reason that you should have a separation agreement in Virginia is that it saves you money! Yes – without having to pay lawyer fees, court reporter fees, and process server fees you save a substantial amount of money. Admittedly, there is a cost to a good and thorough separation agreement, however, that pales in comparison to the cost of a contested divorce.
Now that you know about whether a separation agreement is required in Virginia, you may have another question about whether you can write your own separation agreement. 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 hope that this answers some of your questions at least regarding whether a separation agreement is required in Virginia or at least gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link.
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.
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