In Virginia, parties can obtain a no-fault divorce after a one-year separation period, or if they have no minor children – then after a six-month separation period so long as they have a signed Settlement Agreement resolving all property and support issues.
Many people going through a divorce believe they have a “simple” divorce and attempt to draft their own Divorce Agreements. Others are presented with Agreements drafted by the opposing side but decide not seek their own separate counsel to review the document, usually in order to save money. However, writing your own Agreement may lead to a more costly outcome.
Why You Should Never Write Your Own Divorce Agreement
A few examples of pitfalls associated with drafting your own Agreement include: the Agreement does not fully resolve all the matters between the parties arising from the marriage; the Agreement does not identify and properly address separate property; or, most importantly, the Agreement includes provisions that you do not believe you agreed to or that a court would never order.
Settlement Agreement
When parties sign a Settlement Agreement, they waive the right to have a court identify which property is separate, hybrid, or marital and for the court to value those assets and equitably distribute them based on a number of statutory factors (i.e. monetary and non-monetary contributions during the marriage, duration of the marriage, and the circumstances that led to the dissolution of the marriage).
Custody and child support matters are modifiable by the Court upon a material change in circumstances. However, very rarely do grounds exists to reopen a divorce and evaluate the division of personal and real property. Spousal support may also be non-modifiable depending on the language of the Settlement Agreement. In other words, it is essential to get it right the first time.
Common Dangers of Writing Your Own Divorce Agreement
Here are a few illustrations of the potential adverse effects of drafting your own Agreement or failing to consult with an attorney before signing one that was written by the opposing spouse:
Child Support
In Virginia, child support is payable until a child reaches the age of 18. However, support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs.
The court may also order that support be paid or continue to be paid for any child over the age of 18 who is severely and permanently mentally or physically disabled based if particular conditions are met. However, the Court will also honor an Agreement of the parties which extends a support obligation beyond when it would otherwise terminate as provided by law.
Child Support in College
In some cases, a parent agrees to pay child support to the other parent until the child graduates from college, without knowing that the court would not order support to be paid for this length of time. Also, if the parents do not adequately address how/when child support could be modified after their child reaches the age of 18, the court may not have jurisdiction to increase or decrease child support regardless of the circumstances.
This has led some clients to fall behind with child support obligations without legal recourse. Further, in determining an amount of child support, parties are often not aware that the court bases child support on a statutory guideline calculation based on the combined gross monthly incomes of the parties while factoring in costs of health insurance coverage and childcare expenses. Parties may be surprised to learn that child support is higher or lower than what they would estimate is reasonable or necessary.
Spousal Support
Similarly, a party may believe he or she is on the same page as their spouse with respect to terms of spousal support. However, without individual counsel, what parties believe is the agreement may not accurately be reflected in the written language of the document.
Unless a court deems the spousal support terms ambiguous (oftentimes a high burden), the court will not take note of any conversations with your spouse as evidence of the understanding of the agreement and will solely make a determination based on the plain language of the agreement.
Irreversible Spousal Support?
If an Agreement states that spousal support is non-modifiable, there are no exceptions. It is important to consult with an attorney to consider all the implications of agreeing to non-modifiable support, whether you are the payor or the recipient. Moreover, there are also common misconceptions about what amount and duration of spousal support should be paid.
Common Misunderstanding of the Support Laws
One such misconception is that spousal support should be paid for half the length of the duration of the marriage. Similar to equitable distribution, the court determines the amount and duration of spousal support based on a number of statutory factors.
Some of these factors include the duration of the marriage, earning capacity of each party, and contributions during the marriage. Unlike child support, there are no statutory guidelines to determine an appropriate amount of spousal support to be paid after the divorce.
How Spousal Support is Calculated
It is instead based on one party’s need for support and the other party’s ability to pay in consideration of the statutory factors. Without sufficient knowledge of the law or the counsel of your own attorney, you may agree to pay an amount of support for a duration you cannot afford.
Good Intentioned, but Poorly Drafted Language.
When parties draft their own Agreements, they may fail to realize the implications of the language used or omitted. For example, consider an Agreement that contains the following provision: “The Husband agrees to pay 50% of the daughter’s wedding expenses.” There are several things wrong with this well-intentioned sentence.
First, a court cannot order a parent to pay for a child’s wedding expenses, unless there is a written Agreement. So now, the Husband can be court-ordered to pay wedding expenses, regardless of whether he later changes his mind. What if his daughter wants to get married in the Bahamas? What if the Husband doesn’t approve of his daughter’s fiancée? What if his daughter is getting married for the third time?
Second, what is a “wedding expense”? Does this include everything from the dress to the party favors?
Third, who is going to pay the other 50%? While the husband may have thought that he was paying half, and therefore his (soon to be ex) wife was also paying half – that is not what the language says. The language only requires the husband to pay half of the wedding expenses. It does not also obligate the wife to pay the remaining 50%.
Viewing the Divorce Agreement as a Contract
These examples demonstrate the importance of the written terms of the Agreement and becoming fully educated on the implications of those terms before signing on the dotted line.
The contract you enter into with your spouse is legally binding and the terms of the agreement will govern although a party may later claim it is unfair or unreasonable or even difficult to adhere to.
No matter how simple or amicable your divorce may be, you should always consult with an attorney to prepare and negotiate a Settlement Agreement to ensure you are aware of your rights and legal obligations.
Do I need a divorce lawyer in Virginia if we agree on everything?
Yes and we can help. For more information about your uncontested divorce options, contact Cooper Ginsberg Gray at (703) 934-1480 or www.cgglawyers.com.