In Virginia, either of the parties to a marriage is allowed to initiate a divorce based upon fault or no-fault grounds. Fault based divorces are able to be filed immediately as long as the required grounds exist at the time of initiation. Fault based grounds include abuse, desertion, and adultery. If no such grounds exist for a fault based divorce, couples are permitted to go forward with a no-fault divorce. To qualify for a no-fault divorce, the parties must live separately for either six or twelve months (depending on whether there are minor children) before initiating the divorce.
Unlike many other states, Virginia does not have a “legal separation” under the law. At the point the husband or wife removes themselves from the marriage with the intent to make the separation permanent, the law finds that to be sufficient to establish a separation. There is no requirement to state those purposes to anyone, including the spouse, nor to have any formal agreement. However, as you might imagine, to not have some sort of written document is a path to trouble.
A separation agreement is a legal document that establishes how the parties will live in the course of the separation period. In most situations, the agreement will be incorporated into a final divorce decree and further explain the particular rights and obligations of the parties during the divorce. It may help to enter a smooth transition into final dissolution of the marriage. The topics addressed in a separation agreement can go a long way toward protecting the rights and property of the parties for subsequent divorce proceedings.
Most agreements address the fundamental factors of child custody and visitation, support issues (child support and spousal support), insurance matters, 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 level at which the parties are prepared to cooperate in the procedure.
Once the terms of the separation agreement have been decided, the parties can then determine whether the agreement will provide the foundation of a future divorce decree. If so, once the required separation time 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 performed by one party as an uncontested divorce without requiring additional participation of the other.
Separation agreements are legal documents, much like contracts, signed by both parties before 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 could be held in contempt of court. If found in contempt, they could be sanctioned, be accountable for the other party’s costs and attorney’s fees, and possibly even jailed.
There is no requirement to get separation agreements drafted by a lawyer. However, because they are legally binding documents, it would be good to get the agreement drafted by a Virginia Beach divorce lawyer, particularly if the document is afterwards to be used as the basis of the divorce decree.