subject: Filing A Virginia Divorce With A Separation Agreement [print this page] In Virginia, either of the parties to a marriage may file for a divorce based on fault or no-fault grounds. Fault based divorces are able to be initiated without further waiting provided that the required grounds are existing at the time of initiation. Fault based grounds include abuse, desertion, and adultery. If no such grounds exist for a fault based divorce, couples may opt to go forward with a no-fault divorce. To qualify for a no-fault divorce, the parties are required to live separately for either six or twelve months (depending on whether there are minor children) prior to initiating the divorce.
Unlike many other states, Virginia does not have a "legal separation" under the law. As soon as one of the parties separates themselves from the marriage with the purpose to make such separation permanent, the law finds that to be adequate to begin a separation. There is no need to state those desires to anyone, including the spouse, nor to have any formal agreement. Although, as you might imagine, to not have some sort of formal document is a recipe for trouble.
A separation agreement is a legal document that establishes how the parties will proceed during the separation time. In most circumstances, the agreement will be incorporated into a final divorce decree and further explain the specific rights and obligations of the parties during the divorce. It may help to enter a smooth transition into final dissolution of the marriage. The matters addressed in a separation agreement can go a long way toward protecting the rights and estate of the parties for future divorce proceedings.
Most agreements tackle the basic factors of child custody and visitation, support questions (child support and spousal support), insurance issues, and some debt and property allocation. Separation agreements can be broad guidelines under which the parties will live, or they may be meticulous in each detail. The form depends only on the amount at which the parties are willing to cooperate in the process.
Once the terms of the separation agreement have been determined, the parties can then establish whether the agreement will offer the foundation of a future divorce decree. If so, once the necessary separation period has run, either party can file a complaint for divorce and then immediately submit a Final Divorce Decree which may references the separation agreement for details. Ordinarily this can be completed by one party as an uncontested divorce without requiring additional participation of the other.
Separation agreements are legal documents, similar to contracts, signed by both parties in front of a notary public. If one of the parties fails to live by the terms of the agreement, the agreement may be filed with the court for ratification, and the offending party can be held in contempt of court. If found in contempt, they might be sanctioned, be accountable for the other party's expenses and attorney's fees, and maybe even jailed.
There is no requirement to get separation agreements drawn up by an attorney. However, given that they are legally binding documents, it would be wise to get the agreement drafted by a divorce attorney, particularly if the document is afterwards to be used as the basis of the divorce decree.
