Divorce can be a long, tiring, and expensive process. A property settlement agreement is a document that can ease some of the burdens of traditional divorce proceedings.
Also called a separation agreement, a property settlement agreement is a contract between you and your spouse that determines the rights and obligations of the parties after divorce.
In other words, a Virginia property settlement agreement helps
This document serves to divide property, determine custody of any children, and determine spousal and child support.
Benefits of Creating a Property Settlement Agreement
If you are filing for a no-fault or no-contest divorce in Virginia, the judge will normally require a complete property settlement agreement as part of your divorce proceedings.
As noted in the Virginia Code in the section on no-fault divorces:
“In any case where the parties have entered into a separation agreement…a divorce may be decreed on application if and when the husband and wife have lived separately [for a specified period of time].”Virginia Code § 20-91(9)(a)
Basically, unless you’re going to fight with your spouse over an issue in court, you need to create a separation agreement which outlines each spouse’s post-divorce responsibilities.
However, this isn’t just a procedural recommendation. There are actually numerous benefits to creating a property settlement agreement.
Courts enthusiastically embrace the use of property settlement agreements, as it means less work for them, and the agreements are generally favored by law.
This often means more autonomy and flexibility for the divorcing couple.
In this way, a property settlement agreement is usually a quicker and less expensive alternative to lengthy court battles.
The divorce process can take several months, but with a property settlement agreement you can settle several issues as quick as the day after separating from your spouse.
Finally, a property settlement agreement allows the spouses to make the decision about the division of property, instead of having to rely on a judge.
What are the Legal Effects of a Virginia Property Settlement Agreement?
While the document does not have to be formal, a Virginia property settlement agreement has the full effect of a legal contract.
The court will uphold the document unless the property settlement agreement was made under duress or by fraud.
The property settlement agreement can also be invalidated when the terms are extremely
Often, a typical property settlement agreement will include a provision calling for binding arbitration as a remedy in the case of a conflict or alleged breach.
If one or both of the parties does not comply with some of the provisions, they can be arbitrated. Basically, this means that a judge or other third party can hold a party accountable for breaking the agreement.
If parties have contractually agreed to binding arbitration, the decision of the arbitrator will be final, and will not be overturned by a court, except in issues of child custody and support.
How Do I Make a Virginia Property Settlement Agreement?
A property settlement agreement doesn’t have to be a formal document, and you and your spouse can create one on your own should you chose to do so.
However, there are certain key components that are important to include.
Specifically, Virginia statutory law recognizes marriage agreements and property settlement agreements as legally binding contracts.
In this way, a property settlement agreement may be invalid if the parties were not provided with a full disclosure of each other’s assets and liabilities.
You should also include a provision that addresses “after discovered property.”
This section will cover any property which might turn up after the property settlement agreement has already been executed. It will also call for action against the party that failed to disclose the property’s existence.
Additionally, you and your spouse must use different attorneys when drafting your property settlement agreement. Otherwise, the judge may rule the entire agreement invalid.
Child custody disputes can be long, tiresome, and expensive. If you and your spouse have children, it can be extremely advantageous to resolve any and all custody issues in your property settlement agreement.
It’s important to consider which parent will be responsible for the children on a daily basis, as well as other relevant parenting issues such as visitation.
Once you and your spouse have determined which parent will have primary custody, it’s important to discuss child support.
Child support payments are usually made monthly by the noncustodial divorced parent.
In Virginia, child support is determined by weighing the monthly gross income of a parent and the number of children you have.
In addition to monthly child support payments, it is beneficial to discuss with your spouse other child-related expenses.
This includes any work-
Spousal Support (“Alimony”)
In addition to child support, another major expense that needs to be discussed is spousal support. Spousal support, or alimony, is a monthly payment one spouse makes to the other in order to help support their pre-divorce lifestyle.
Like child support payments, alimony is determined through statutory guidelines.
Equitable Distribution of Property in a Property Settlement Agreement
One of the key benefits of a Virginia property settlement agreement is that both spouses have the opportunity to decide how to divide their property.
However, you must divide your property in an “equitable” manner.
During this procedure, you and your spouse will classify your property, assets, and debts as either separate or marital.
“Separate” property belongs to the spouse who owns it, while “marital” property will be divided fairly between each of you.
As a conceptual example, most inheritances and gifts given directly to one spouse (such as heirlooms received from parents) are separate property.
However, anything used in the course of your marriage (shared cars, silverware, pets, etc…) would count as “marital” property.
After classifying your property as either separate or marital, you and your spouse will then divide the property between the two of you in a “fair and equitable” manner.”
In the absence of a property settlement agreement, the judge in your divorce case will make these decisions for you.
However, by including an equitable distribution section in your property settlement agreement, you can divide up your property as you see fit.
Divorce can be a time consuming, expensive, and emotionally draining process. A property settlement agreement can be a beneficial tool for both you and your spouse by relieving some of the many stresses of divorce.
This legally binding contract has the ability to save you time, money, and many of the headaches of a traditional divorce.
While a property settlement agreement can be prepared without an attorney, hiring an experienced and competent attorney is recommended.
Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.