As we discussed in a recent post regarding Coronavirus FAQs, access to our court system remains limited. For those who are encountering significant issues pertaining to separation and divorce, alternative dispute resolutions should garner more attention.
Perhaps the most common alternative dispute resolution option in Virginia divorce cases is a Separation Agreement (aka Property Settlement Agreement or "PSA"). In light of the current social-distancing requirements, a Separation Agreement may also be the most viable option.
What is a Separation Agreement?
A separation agreement is a (signed) legal contract between two spouses that details the terms of their separation. The agreement typically covers all of the issues that the parties need to address before getting divorced. While there are a number of common provisions, here are a few of the major topics that are often included:
- Property Distribution
- A description of how the parties' assets will be divided.
- This includes real property (house / rental home), tangible personal property (their stuff--vehicles, furniture, jewelry, etc.), and intangible personal property (bank accounts and retirement/investments).
- Debt Distribution
- A description of how the parties' debt (e.g. credit cards / auto liens / student loans) will be resolved--which spouse will be responsible, or how the spouses will share the obligations.
- Spousal Support
- A description of the the support obligation (often a monthly payment from one spouse to the other), or a specification that the parties are waiving support.
- Child Custody, Visitation and Child Support
- For separating spouses who have minor children, they may elect to include provisions regarding child custody, visitation and child support.
Benefits of Separation Agreements
- More Cost-Efficient and Time-Efficient
- Litigation is very time consuming. Even simple cases take many months. More complex cases can take years to fully resolve. And it is expensive--attorney's fees, court costs, missed time from work for hearings and depositions, etc.
- Separation Agreements can provide you with a quicker and more cost-effective outcome. Many folks who reach agreements don't ever set foot in a courtroom. Surprise, surprise: you save money on fees and costs. Avoiding the courtroom also helps you avoid the accompanying stress and anxiety, meaning you get a significant emotional benefit as well.
- Determine Your Own Outcome
- We have excellent judges in Central Virginia, but it is not uncommon for both litigants to walk out of a courtroom unhappy. There really are no "winners" in family law matters.
- Separation Agreements allow the parties to maintain some control over the outcome. Sure, it might not be everything you want (as is the nature of compromise), but resting the decision in the hands of those who stand to be impacted by said decision makes a lot of sense.
- Be Creative
- Separation Agreements afford spouses with a lot of creative leeway. This includes the ability to add terms to their agreement even though a judge might be unwilling or unable to order the same terms (e.g. sharing a child's college expenses).
- Spouses can choose what terms to include and exclude from their agreement; it is feasible to do a partial-separation agreement (resolving some, but not all, of the issues in contest).
Separation Agreement Hurdles
- You Have to Agree
- Just because you prepare an agreement does not mean the other party has to sign. This is a contract; they have to be willing. Accordingly, there is no guarantee that your efforts (and expenditures) to prepare and negotiate terms will bear fruit.
- Coming to an agreement is much easier said than done. There are reasons spouses choose to separate and, whatever the reasons may be, they often hinder communication and compromise.
- Reasonableness
- This goes hand-in-hand with the previous point, but reaching agreeable terms typically requires that both parties (and their attorneys) act reasonably.
- If spouses have drastically different viewpoints/expectations, negotiations can fizzle out quickly. This is especially true for emotionally-charged issues (e.g. parenting-time with minor children, the amount of monetary support, who should keep the marital residence).
- Time-Pressure
- One major benefit of the litigation process is that it gives you the ability to use court-rules and deadlines to achieve results when your spouse is not particularly responsive or cooperative.
- There are fewer tools in the negotiation realm; there is no technical deadline to respond to a draft agreement. If you do not have an active court case pending, it may be difficult to motivate your spouse to come to the negotiation table.
Despite the hurdles, a separation agreement can be an invaluable tool for spouses who are hoping to obtain a separation / divorce without litigation.
If you are interested in speaking with an experienced divorce and family law attorney about your options, please contact BoykoNapier by phone at (804) 658-3418, or via email.
