Separation and Property Settlement Agreements
In Virginia no-fault divorce cases (i.e., cases requiring separation), the separation period usually lasts 6 months or one year. A final divorce decree can be obtained after this time.
Under Virginia divorce law, a final divorce decree can be obtained only upon proof of the existence of one of the divorce grounds (four fault grounds and a no-fault ground). The four fault grounds are: adultery, sodomy, and/or buggery, conviction of felony, cruelty, or desertion. The no-fault ground for divorce is separation. Separation means the two parties are still married but living separately. There is no legal filing of separation under Virginia statutes.
If the two parties have entered into a separation agreement and they have no minor children, a divorce can be obtained after 6 months. If the two parties have a minor child or do not have a separation agreement, then divorce could be obtained after 1 year of separation. In both cases, the parties must have lived separately for the period of time required before filing for divorce. A final divorce decree will extinguish all contingent rights of either party in the other party’s real and personal property.
A separation agreement is a legal document that addresses common issues between the two parties involved in the divorce process. The separation agreement establishes an official separation date. A separation agreement before the separation period helps protect both parties and prevents contestation.
During the period of separation, parties need to be thinking about related issues such as child custody, child support, and dividing property. When it comes to dividing property, under Virginia Code 20-107.3, the basic principle of the statute is “equitable distribution.” Virginia recognizes marriage as a partnership. Thus, in Virginia, all property acquired during the marriage, unless otherwise agreed to beforehand, is “marital property”.
Other property which solely belongs to one spouse or was acquired before marriage can be categorized as “non-marital property.” In an equitable distribution proceeding, Virginia courts can divide jointly owned marital property, order a monetary award, order a pension-based or injury-based award, or order a combination of several different remedies.
In Virginia, courts consider the following factors before deciding on how to divide assets or make a monetary award: the contributions of each party to the family, the contributions of each party to the acquisition, care, and maintenance of the marital property, the duration of the marriage, the ages and conditions of the parties, the circumstances contributing to the dissolution of the marriage, how and when the specific items of marital property were acquired, the debts and liabilities of each spouse, the tax consequences to each party, along with other factors the court may deem necessary to study.
Property settlement agreements are contracts which seek to resolve marital property issues outside of court. If and when the two parties enter a property settlement agreement, Virginia courts usually accept the property settlement agreement as binding and enforceable unless there was fraud, duress, or unconscionability involved. Property settlement agreements are usually sought after because of their quick and cost-effective way of compromising to resolve issues in comparison to lengthy and costly litigation. Property settlement agreements also allow the two parties to come to an understanding on specific issues that the court may not be willing to address.
At Raheen Law Group, we understand that the separation and settlement agreement process could be emotional and stressful. Each step of the divorce process, including the separation period, could be significant in that it could affect your case and thus should be carefully considered. Sometimes a spouse makes a decision, such as moving out of the marital house, without consulting an attorney.
Unless there is abuse, attorneys usually advise the spouse to stay in the marital house because it can negatively affect his or her case. As with any life altering situation, it pays to evaluate all options thoroughly and to get help from an advocate who can protect your legal rights. Raheen Law Group can help you through the different steps of the process, both before and after filing for divorce. If you wish to discuss your situation with us, please contact us for a consultation.