You and your spouse have decided to separate. You both realize this is the best thing for your future happiness. You agree on all the details — spousal support, child custody, property division — and sign off on the property settlement agreement. Only … a few months later, you reconcile. Now what? What protections remain in place?
What Marital Separation Means
Properly done with care and professionalism by family law attorneys, a property settlement agreement in Virginia serves as the framework for separation and later divorce. It lays out all the details for every aspect of separating two people’s entwined lives:
- Property division
- Spousal support
- Child custody
- Child support
- Asset and debt division
- Parenting time schedules
If the separation agreement (property settlement agreement; they’re the same papers) is well worded and thoughtfully prepared, neither you nor your separating spouse can complain or argue about surprises.
That leaves only one loophole, and it’s a big one: reconciliation.
In Virginia, reconciliation after separation presents a number of legal entanglements. It also is not as simple as “Oh well, that’s behind us.”
A one-night rekindling of past passions may not signal reconciliation. And informally saying you two are back together is also not, legally, reconciliation. She can throw away any paper she likes; the document still exists.
For any kind of marital agreement to be taken seriously by a Virginia judge, it should be in writing (though, legally, it does not have to be) and should be read into a court record, under Virginia’s Code § 20-155. Marital agreements:
Married persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution. If the terms of such agreement are (i) contained in a court order endorsed by counsel or the parties or (ii) recorded and transcribed by a court reporter and affirmed by the parties on the record personally, the agreement is not required to be in writing and is considered to be executed. A reconciliation of the parties after the signing of a separation or property settlement agreement shall abrogate such agreement unless otherwise expressly set forth in the agreement.
Key in on that last sentence: reconciliation … shall abrogate such agreement unless otherwise expressly set forth in the agreement. Abrogate: repeal; do away with. If you reconcile without careful wording in the marital agreement to separate, you give up any protections that property settlement agreement had in it.
Reconciliation clauses in property settlement agreements can take two general forms. One type of wording helps avoid needless expense if the reconciliation falls apart and you two separate again. You and your attorneys place a clause in the agreement that says a second separation will use the same agreement as the first.
The other use of the clause is to put some claws into the documents. With that wording, if you reconcile, everything in the property settlement agreement remains in force during the new era of your rekindled marriage.
A reconciliation clause serving to put some protections for both parties in a Virginia property settlement agreement may read something like this:
“In the event of reconciliation and resumption of the marital relationship, all of the provisions of this agreement shall nevertheless continue in full force and effect without the abatement of any term or provision hereof.”
Don’t Go Chasing Your Tails
If you do not put some kind of wording into your property settlement agreement when separating the first time, you will end up chasing your tails with each new round of acrimony over matrimony. You separate; you make up; you separate; you make up.
When discussing separation with your family law attorney, consider both types of clauses:
- One clause to keep the property settlement agreement intact for a possible future separation after reconciliation;
- One clause to keep the agreement in force after reconciliation, during the reawakened phase of your marriage
Perhaps Constructive Wording
The second type of reconciliation clause can rebalance your relationship after reconciliation. If one of you felt ill-used by the other, the reconciliation clause that keeps all of the agreement in place during your marriage can reduce some of that ill will.
You both know whose property is whose, and who gets what of each other’s future earnings. You know, also, who will get physical custody of the children, who will have legal custody, and which of you will have to pay the other in spousal support. A lot of uncertainty can be written out of a marriage by keeping the specifics of a property settlement agreement in effect.
The property settlement agreement becomes a rulebook not only to a possible second separation, but to the reborn marriage itself.
Anytime you have questions about separation, divorce, or family law, turn to The Firm For Men. Contact us today or telephone our office at (757) 383-9184. We can answer your questions about property settlement, protecting your rights as a Virginia man, and much more.