Virginia Divorce Law: The Problem with DIY Separation Agreements
If you have started the divorce process or are just now thinking about whether you want to begin, it is important to understand the dangers associated with a do-it-yourself (“DIY”) divorce. As I have written about in a separate article, the two major types of divorces are contested and uncontested divorces.
If you are pursuing an uncontested divorce, you will likely need a separation agreement. So what is a separation agreement, why do you need one, and what could go horribly wrong if you DIY?
What is a Divorce Separation Agreement?
This is a document that explains to the court what you and your spouse would like to do with everything that was acquired during the marriage and how you are handling custody and visitation of any children. To qualify for an uncontested divorce, you must fully resolve all these issues.
You and your spouse will need to agree on how to handle things including, but not limited to, life insurance policies, health insurance, debt, bank accounts, stocks, bonds, vehicles, jewelry, retirement accounts, pets and real estate. You will also need to handle where the children will live and how often the other parent will get to see the children.
Why Do You Need a Divorce Separation Agreement?
If you do not have an agreement in place of some kind, then you must do a contested divorce. These can be terribly time consuming and expensive. You will be required to obey several rules and file the appropriate paperwork with the court or risk losing your case.
Without a separation agreement, you may also run into arguments on how to handle your property. You may have thought you had an agreement on who would handle a certain credit card bill, but without something in writing you risk a dispute. Therefore, it is important to have an agreement in writing.
What Could Go Wrong if you Don’t Hire a Lawyer to Draft the Separation Agreement?
I have seen too many people attempt to create a DIY Separation Agreement. Common examples of issues that go wrong include a) not identifying how retirement accounts will be divided, b) not identifying how real estate is going to be sold and c) not being clear enough in how custody and visitation schedules are going to work.
If you are not clear, you will have a lawsuit. These are complicated matters with plenty of potential loopholes that could get you trapped in court for years. It could hold up the sale of your property and cost you thousands of dollars. It is cheaper to hire an attorney to get it right the first time than try and hire a lawyer to fix the bad DIY job later.
Therefore, make sure you talk to an attorney if you are considering a divorce so you can get a separation agreement that meets your needs and protects you down the road.
Virginia Divorce: Dating During Divorce Proceedings
Are you considering dating while your divorce is pending? Think again.
A common question I get in relation to divorce is whether you can date while your divorce proceedings are pending. The term people use is “legal separation,” and they want to know what that means. There are some states in the United States that allow for legal separation and for dating while your divorce is pending? Is Virginia one of those? No.
So how do you protect yourself while your divorce is pending?
How can dating impact your divorce?
As discussed above, there is no such thing as “legal separation” in Virginia. Until you are formally divorced by a court order, Virginia law still considers you to be married. Virginia law also has adultery as a grounds of divorce. If you date while your divorce is still pending, and the other side does not, that fact can be used against you in a number of different ways.
The first is property distribution. Virginia is an equitable distribution state. This means that marital assets and debt are divided based on what is “fair.” The court will take into consideration fault based grounds of divorce when deciding what is fair for property distribution purposes. If one of the parties is engaging in adultery, that can be used to obtain more assets.
The second effect is child custody. Courts in Virginia are reluctant to grant primary custody to a parent who is dating and has that person around the kids. Virginia law has restrictions on such “cohabitation,” and will generally favor the parent who is not dating. Therefore, dating while a divorce is pending can impact custody.
Finally, adultery is still an antiquated crime in Virginia. Dating during the divorce proceedings, while unlikely, may result in criminal proceedings.
How to protect yourself?
There are different types of divorce in Virginia, and one of those types may be able to allow you to start dating. Whether you qualify for this type of divorce will largely depend on the facts of your case. Most attorneys will encourage you to get a separation agreement executed with your ex before dating, and refrain from dating while the divorce is pending.
Speak to a lawyer if you are considering dating during your divorce proceedings. Your lawyer can let you know what your rights are and help prevent an unfair outcome.