Yes, Virginia, there is a Santa Claus. And yes, Virginians, there is a reconciliation clause. In the first case, poetic license allowed Francis Pharcellus Church of the New York Sun newspaper1 to answer young Virginia O’Hanlon’s letter about St. Nick back in 1897. In the second case, reconciliation clauses are commonly used in property settlement agreements. In both cases, though, myth has tangled itself up inside the topic.
The Separation Agreement
In Virginia, you cannot get a “legal separation,” so let’s dispel that myth right away. You can get, and should have, a separation agreement, because that formal legal paper helps get the process rolling for an eventual divorce. Separation is a clockwork mechanism that requires you and your wife to be either six months (with no children) or one year (with children) apart before you can file for an uncontested divorce.
That separation agreement can include just about anything you two desire to put into it, so long as the two of you are in agreement and the details are legal in Virginia.
You can determine property settlement, child custody, or which spouse breaks the bad news to your kids about the jolly old elf (the aforementioned S. Claus). You can also include in it a reconciliation clause.
A reconciliation clause is a kind of verbal insurance policy. People are not machines; their emotions often carry them into unfortunate corners of life. When you two are facing separation, your emotions probably are ruling as much as your minds are, so a possibility exists that you may reconcile (get back together as a married couple) for a while, only to once again separate and eventually divorce.
A myth has it that all reconciliation agreements are the same, with the same goal. That is not true.
One kind of reconciliation clause, a kind of “Never mind” statement, sets down a marker stating that, should you reconcile at a later date but that reconciliation fails, whatever was agreed to in the existing separation agreement will still be valid for the next separation.
In Virginia especially, a reconciliation clause ensures that the spirit and intent of the separation agreement is honored. This has the effect of counterweighting other evidence that a reconciliation did or did not take place, as cited in Roberts v. Pace, 193 Va. 156 – Va: Supreme Court 1951. With the reconciliation clause embedded in a separation agreement, no court can second-guess your intent. You clearly state in it that, if you reconcile, but later split, all the details carry through.
The second kind of reconciliation clause, specifically written in answer to Code of Virginia § 20-155, means the reconciliation occurs under the full weight and strength of the agreement’s conditions. It may be worded 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.”
This is a “non-abrogation” clause that answers Code of Virginia § 20-155’s last sentence:
“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.”
Say the separation agreement gives control of half of your retirement account’s current value to your wife. Reconcile, and she still retains that control.
Most family law attorneys will advise you to think very carefully about the exact wording of a reconciliation clause. Do you want to:
- Push back against § 20-155’s abrogation that will invalidate the entire agreement?
- Preserve tough-won concessions in the event the marriage eventually crumbles?
- Live in reconciliation with all the limitations and stipulations spelled out in the separation agreement?
- Use the reconciliation clause as an overhanging threat to not get back together, to keep the momentum moving toward divorce?
As for young O’Hanlon’s question, we can do no better than to quote one of Francis Pharrell’s Church’s best lines in his editorial response to the eight-year-old:
“Yes, VIRGINIA, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy.”
Far be it from any Virginia attorney to puncture the lofty balloons of childhood innocence; rather, we encourage all our readers to search their own consciences and decide for themselves if they still believe.
No matter what, though, you should believe in the value of having a reconciliation clause baked into your separation agreement. Otherwise, as your life unfolds, you could be facing the bitter disillusionment of finding out everything hashed out in the first place is now swept aside, to be re-litigated after a subsequent reconciliation and another split.
Avoid being disillusioned with your Virginia divorce. Call The Firm For Men at 757-383-9184, or contact us online, to receive correct, up-to-date, accurate legal help with your family law matter. Whether for separation, divorce, or custody, we are here to help Virginia men. We preserve and defend your rights, and help separate myth from reality.