Most people seem to have heard of separation agreements but don’t know many details about them. When people divorce there are three main subjects have to be addressed. If there are children, there has to be a plan for where they will live after the parents stop living together. To the extent the spouses have property or debts that were acquired or incurred during the marriage, they have to be split somehow. And it may be necessary for one spouse to pay a monthly amount in support to the other, either for themselves or for children living with them.
The Circuit Courts will make these decisions for people if they must. The Virginia Code gives Circuit Court judges the authority to make court orders about (1) child custody and visitation, (2) the division of property and debts and (3) the payment of child and spousal support. I have heard many judges explain to people that they (judges) will do the best they can but that the parties themselves probably will be happier if they work out these issues themselves.
If the parties are able to agree about a particular issue, they can make a contract about it. If the issue concerns spousal support or the division of property or debt, the Court can order them to comply with their contract. Once the parties have made an agreement on one of these topics, the judge’s hands are tied and they cannot order anything but what is in the parties’ agreement.
Child custody and child support are different. The judge is not bound by the parties’ agreement. A contractual waiver of child support, for example, is not binding on the court. Child custody and visitation are also topics where the judge always has the final say. They may defer to what the parties want but, if the judge thinks the plan is not in the child’s best interest, the law allows them to order something else.
Separation agreements generally have to be in writing and signed by both parties. Court orders signed by the parties’ attorneys are binding even though the parties themselves haven’t signed them. Also, an agreement stated in open court can be binding if the parties tell the judge they understand it and are willing to be bound by it.
The best way to avoid spending a fortune to get divorced is to reach an agreement on all issues. Then you are only paying a lawyer to take care of the formalities. The agreement itself should be written by a lawyer to knows family law well.
Some people try to economize by writing the agreement themselves or using a form they found on the internet. I don’t recommend this. The cost to have a professional write up an average agreement is affordable for almost everyone. Shop around and you’ll be able to find someone who will do it for a price you can afford.
I recommend that one spouse pay to have the agreement drafted from a list of deal points the parties have verbally agreed to. The other spouse should then pay for a consultation with a different lawyer to go over the text and make sure it will work as expected. Once everyone is ok with the wording, the spouses both sign the agreement and the hard part of the process will be over. The final decree of divorce will simply refer to the agreement and order both parties to comply with it.