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FREQUENTLY ASKED QUESTIONS REGARDING MARITAL SEPARATION AGREEMENTS IN VIRGINIA
- Are Separation Agreements Enforceable Under Virginia Law?
Yes. In fact, separation agreements are "favored" under Virginia law. In the case of Martin v. Martin, (Va.App. 12-12-2006), the Court of Appeals of Virginia ruled that:
"[M]arital property settlements entered into by competent parties upon
valid consideration for lawful purposes are favored in the law and such
will be enforced unless their illegality is clear and certain."
Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980) (citation
omitted); Derby v. Derby, 8 Va. App. 19, 25, 378 S.E.2d 74, 77 (1989).
- Can a Separation Agreement be Used as the Grounds for a Divorce in Virginia?
In cases where there are no children, the existence of a separation agreement actually reduces the separation period required for divorce under Virginia law from 12 to 6 months. In this regard, Section 20-91 of the Virginia Code provides as follows:
(9) (a) On the application of either party if and when the husband and
wife have lived separate and apart without any cohabitation and without
interruption for one year. In any case where the parties have entered
into a separation agreement and there are no minor children either born
of the parties, born of either party and adopted by the other or adopted
by both parties, a divorce may be decreed on application if and when the
husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of
recrimination with respect to any other provision of this section shall
not be a bar to either party obtaining a divorce on this ground, nor
shall it be a bar that either party has been adjudged insane, either
before or after such separation has commenced, but at the expiration of
one year or six months, whichever is applicable, from the commencement of
such separation, the grounds for divorce shall be deemed to be complete,
and the committee of the insane defendant, if there be one, shall be made
a party to the cause, or if there be no committee, then the court shall
appoint a guardian ad litem to represent the insane defendant.
- What Are the Benefits of Entering into a Marital Separation Agreement?
By setting forth your agreement on issues such as the distribution of marital property, alimony, and child support, you can substantially reduce the cost and time required to obtain a divorce in Virginia. You can also avoid the stress and uncertainty of having complete strangers decide these important issues. In addition, couples frequently find that by entering into an agreement, they decrease the bitterness and animosity that frequently arises in divorce. Several studies have shown that on average, couples who sign marital separation agreements reduce the cost of divorce by more than 65%. In addition, as noted above, the existence of a separation agreement reduced the separation period required for divorce from 12 to 6 months in cases that do not involve minor children.
- When can a Couple Sign a Marital Separation Agreement?
In Virginia, a marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.
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