REESELAW BLOG

Unlike some other states, Virginia law does not recognize the status of "legal separation" in marriage, but there are alternatives that married couples can consider. Couples who wish to live apart and clarify their responsibilities and rights without formally ending their marriage can do so through the legal mechanisms of a postnuptial agreement or a separation agreement. These are binding contracts in Virginia, and – if done correctly – they offer enforceable guidelines for couples who do not want to get a divorce.

Why Choose a Form of Legal Separation Over Divorce?

There are several reasons why a married couple might opt for a form of separation rather than proceeding directly to divorce, including:

• Privacy: Even couples who reach a divorce settlement need a court order to legally divorce in Virginia, which is a public record.
• Cost: Divorces can be expensive, as they involve court fees, attorney fees, and other related costs. A separation agreement can be a more cost-effective interim solution.
• Religious Beliefs: Some couples may have religious or moral objections to divorce but still wish to live separately and manage their individual lives.
• Children: Couples might want to create a stable environment for their children during the separation period, setting clear guidelines for responsibilities and visitation without the immediate upheaval of divorce.
• Reconciliation: Some couples use separation as a trial period to contemplate reconciliation, using the time apart to reflect on their marriage and decide if divorce is the best outcome.

Postnuptial Agreements: Establishing the Rules

A postnuptial agreement is a legal document executed after marriage that outlines the division of assets, responsibilities, and other key terms should the couple decide to separate or divorce. It can also provide for the “rules of the road” for a couple that apply to an ongoing marriage where divorce is not contemplated. The principal legal requirement for a postnuptial is that it needs to be in writing and signed by both spouses. A postnuptial agreement can cover a broad range of terms such as:

• Assets and Debts: The spouses should spell out who owns what property and who is responsible for which debts. It is also wise to identify and address separate property and property that they may acquire going forward.
• Income and Spousal Support: How each spouse’s income will be allocated, especially if the spouses have income disparities. The parties can agree on some form of support as well.
• Child Custody and Support: Arrangements regarding the care, custody, and financial support of their minor children.
• Inheritance and Estate Planning: Provisions regarding each spouse’s rights to inherit from the other.

Virginia courts generally will enforce postnuptial agreements if the provisions are neither unconscionable nor criminal. In addition, a postnuptial agreement needs to be entered into voluntarily by both spouses and must clearly and fully disclose assets and debts. If spouses have questions about the terms of their postnuptial agreement, they should confer with counsel prior to signing.

When It Is Time, a Separation Agreement Can Help

Whether spouses have reached a point where divorce is inevitable or they want to take a period of time to assess the marriage, a Separation Agreement can set the guideposts for the couple before their divorce. The terms and enforceability of a Separation Agreement are similar to a postnuptial, and they can be used to test terms that may become permanent in the divorce. This can minimize conflict and allow the parties to keep costs and acrimony down, which can be particularly important when children are involved.

As an enforceable agreement, a postnuptial or a separation agreement can have serious consequences for both parties. Both spouses should seriously consider speaking with separate postnuptial attorneys to ensure that the agreement's terms are legal, fair, and enforceable. An experienced family law attorney may also be able to suggest provisions that the spouses had not considered, which would add clarity to the next phase of marital or separate life. If you are considering separating from your spouse and want a binding agreement between you, contact ReeseLaw, P.C., for a consultation on your options in Northern Virginia.