Schoolyard taunts: I know you are, but what am I? Oh yeah? Make me! Most of us grew up hearing these, either directed at us or spoken by us. Sometimes we enlisted a bigger friend or older sibling to bail us out: Touch me and my big brother will cream your corn. We (mostly) grow out of these disputes. The question as adults is, can you get a bigger friend to compel your wife to sign a separation agreement?
Virginia Property Settlement Agreement vs. Separation Agreement
In Virginia, a property settlement agreement and separation agreement are the same thing; the agreement sets out all the conditions of a separation so that, in six months (without kids) or a year (with kids) you two can divorce. The agreement will spell out financial details, child custody, child visitation, and any other issues you and your attorney feel are important.
Under Code of Virginia, the agreement is signed by both parties to indicate they mutually consent to the terms. In very specific language, the Code explains that an agreement signed under duress is not valid. You cannot force your wife to sign the separation agreement, just as she cannot order you to sign it.
Virginia Code § 8.01-581.26 is an entire section of state law devoted to “Vacating Orders and Agreements,” as in property settlement agreements. It says in part:
“Upon the filing of an independent action by a party, the court shall vacate a mediated agreement reached in a mediation pursuant to this chapter, or vacate an order incorporating or resulting from such agreement, where … the agreement was procured by fraud or duress, or is unconscionable …”
There it is. You cannot compel your wife to sign anything she does not wish to sign. This bars you from making real or implied threats against her. Ah, but what is a threat? Saying you two will have to pursue a contested divorce is not a threat; it is a natural outcome of her refusal to sign a property settlement agreement (Pelfrey v. Pelfrey, 1997). Saying you will kill yourself if she does not sign is a threat (a finding from the same decision), points out the Virginia Bar Association in a review of Virginians’ attempts to overturn property settlement agreements.
Is it an Unconscionable Agreement?
If you, rather than strong-arm your wife, attempt to have her sign something unfair to her, you will fail when she sues to vacate the agreement. You created a condition so lopsided in your favor that no reasonable person would have signed it had she known exactly what it meant.
This is the part of Virginia law that essentially protects Virginians from themselves. Say you and your attorney generate a property settlement agreement that spells out the sweet rides you two owned:
- You get the BMC fourstroke 01 XTR Di2 (MSRP $13,000) mountain bike and she gets the Diamondback Recoil 29 bike (MSRP $600-$999)
- You get the 2017 Ford Super Duty F-450 Platinum 4WD pickup truck (MSRP $77,325) and she gets the 2017 Nissan Frontier King Cab S (MSRP $19,930)
- You get the DeepFlight Super Falcon Mk II personal submarine ($1.5 million) and she gets the PS-7.5 row boat ($699)
Any Virginia judge will notice a tendency in such an agreement to, shall we say, leave her with the anchor and you with the yacht. That makes the deal unconscionable, and therefore invalid.
Separation Agreements & Fraud
Another condition of your property settlement agreement is that you did not defraud your wife; you did not present the row boat and say it’s the submarine, in our earlier example. Make certain of two core ideas to avoid charges of fraud:
- You did not overvalue things you are granting her, such as your intellectual property for your brilliant patent idea, the anti-eating face mask that will end obesity as we know it
- You did not undervalue things you kept for yourself, such as your 37 shares of Berkshire Hathaway Inc. (typical single-share price, $276,556)
Protect Yourself and Your Rights with The Firm For Men
You have no big friend on the schoolyard. Your wife is not your enemy. Avoid conflict by turning to a trusted attorney to get the property settlement agreement you both deserve. The document is not meant to be wielded as a weapon in some bitter divorce dispute. It has value as a means of dividing your property (real estate, artwork, antiques, intellectual property and, yes, personal submarines) and establishing fair and just values for child and spousal support. It also can build in child custody and a visitation schedule so you each enjoy watching your children grow up.
Having a hard-working attorney draw up the property settlement agreement is really the least expensive, surest way to get what you want. That way, you can never be accused of perpetrating fraud, being unconscionable, or inflicting duress to get your wife to sign.
Contact the divorce lawyers for men at The Firm For Men by calling 757-383-9184 or using our online method. We may not be able to offer much in the way of verbal taunts (wait — we’re lawyers; of course we can) but we will defend the rights of Virginia’s men in court and on playgrounds across the Commonwealth. The Firm For Men is proud to serve Virginia Beach, Norfolk, Chesapeake, Portsmouth, Suffolk, Newport News, and Hampton.
