Chessie the Chesapeake Bay sea monster probably does not exist. Snallygasters and Bigfoot may or may not exist in Virginia; the odds are against either of them, despite the hype provided by sites like Mysterious Universe1. One other mythical Virginia fantasy is the legal separation. In Virginia, you cannot claim “legal separation;” you can be separated, or you can be divorced. You can, though, sign a separation agreement. A separation agreement is legally binding and officially recognized by the Commonwealth.
No Legal Separation but Separation Agreements!?!
For most Virginians, this may seem like a matter of words, but the Code of Virginia (the law of the land) does not recognize “legal separation.” You and your wife can separate, and either six months or a year later you can divorce through the “no fault” divorce process (neither of you is accusing the other of some awful behavior). The two time intervals depend on whether you have children or not (no kids: six months; kids: one year).
Though you do not benefit from a “legal separation,” you can separate and you can enter into a separation agreement. It is perfectly legal and is codified as Title 20, Chapter 8, §20-155, Marital agreements. We will quote the whole thing to set your mind at ease:
“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.”
Counsel of the Two Parties
Your wife retained a lawyer; you retained a family law attorney. You are both represented by counsel, so you can comply with all the details of §20-155 by having your two attorneys draw up a Separation Agreement. You can even pick what name you would like it to have:
- Separation Agreement
- Property Settlement Agreement
- Marital Settlement Agreement
So let’s say you find yourself inexplicably married to a real Snallygaster of a woman (go ahead, have some fun: see what fits):
- An enormous flying monster with a wingspan of twenty-five to thirty feet
- A long beak
- Leathery skin that looks like a reptile
- Talons of steel
- Has the pungent scent of death
- Shrieks like a train whistle
You need out of that marriage! She hires Bigfoot for her attorney, and you (sensibly) select a top-shelf Virginia Beach family law firm. The two attorneys draw up a Property Settlement Agreement in which you detail everything you will divide, who will be responsible for what payments, and how responsibility for your children will be divided between you two.
All Bigfoot, Esq. and your attorney have to do, to be completely legal about the Agreement, is to read its conditions in court. Once the conditions appear in the judge’s court order granting the divorce, you have complied with the law.
To be practical, you both should have written copies of your Separation Agreement so you know which weeks you will have your little demons delightful children and which weeks she will tame the little terrors enjoy the company of your kids. Finances, real estate division and personal property will all be split in the legally binding Separation Agreement.
Can a Separation Agreement be Modified?
Suppose, though, you realize too late that you want to … er … slip out of some aspect of the Separation Agreement? You can do that, too, by having your attorney petition the court for changes to the Agreement based on material changes to your life.
Material changes do not mean you switched from briefs to boxers (although doctors do say boxers are healthier). Material changes mean things like a job transfer, loss of income, retirement, medical issue, or some other substantial alteration in your life.
Then, legally binding as the Separation Agreement is, it can be modified, through legal channels. You cannot simply ignore the parts you want changed, and start doing something else; you must get your attorney to ask for a modification hearing.
Your ex-wife does not have to go along with the modification, but then again, she cannot ignore the material changes in your circumstances. The court may force her to accept your new reality, which may mean anything from a reduction of her spousal support to increased parenting time for you.
Every legal question deserves a respectful answer. Your call to 757-383-9184 connects you to The Firm For Men, or you may contact us online. We are happy to answer your questions about property settlement agreements, separation, and divorce.