What is a Separation Agreement?
A separation agreement is an important document that parties execute prior to obtaining a divorce in Virginia. Generally, it will resolve all of the issues that would otherwise need to be submitted to the Court in a Petition for Divorce. The terms of the separation agreement generally are agreed upon between the parties, with some negotiation and back and forth from their attorneys if possible as well. Most importantly, the agreement serves as a legally binding contract and is not filed with the Court. Thus, when the parties appear in front of the court for final entry of their divorce Order, they state that they have entered into a valid separation agreement about which there are no disputes and dissolution of their marriage is in the best interests of both parties and the marriage should be dissolved.
If both parties are able to stipulate to the terms of their separation agreement , the terms generally view divorce as something amicable and that can be agreed upon, rather than a nasty court battle that often leaves both parties feeling very unhappy with the results. The separation agreement is really the parties’ opportunity to work together to come up with the best terms for their settlement. Once the separation agreement is executed by the parties and notarized, most attorneys will recommend that it is filed with the Clerk’s Office when you file your Petition for Divorce and that you obtain an endorsement from the judge on the Order stating he/she has reviewed the Agreement and found that the terms are not unconscionable or against the public policy of the Commonwealth of Virginia.
Factors Impacting the Cost
The costs associated with a separation agreement in Virginia can vary widely based on a number of factors. The first and most obvious is, of course, the attorney fees. Even the simplest separation agreements require the advice of an attorney, and legal counsel may be needed for several months until the parties reach a final agreement. If the agreement is contested by one party, or the terms are extensive, then the cost can be substantial across numerous meetings.
Another factor that can affect the cost of a separation agreement is the complexity of the marital assets. Many people have a variety of investments and business arrangements that can complicate the proceedings. In most cases, full disclosure of these assets is required, so that both parties understand exactly what is available in the divorce settlement. If the spouses are not forthcoming with the information, their attorney’s fees can increase significantly.
Finally, the length of a separation agreement can affect the cost of the services. Typically, after a marriage falls apart, the parties will go through a period where they live separately and attempt to abide by oral or written agreements. If the divorce is contested, then these arrangements are rarely honored, requiring a more detailed and complex separation agreement.
Finally, sometimes the issue of custody can impact the costs of a separation. Even after an agreement is reached, it may be called into question if it does not appear to be in the best interest of the children involved.
Typical Cost Range
When it comes to a separation agreement in Virginia, there is a typical range. Even if there were not a typical range, it would be very difficult to taylor an agreement to a person’s personal situation without there being one. Typically, the range is determined by how complicated the agreement is based on the marital estate.
For example, a case with little to no property and perhaps children involved could have a separation agreement prepared for around $500.00 or so.
However, when we get into situations where there is substantial property involved, so long as we are on good terms with the husband and the wife, the costs start getting up into the $800.00 to $1,200.00 range.
In situations where there is a substantial amount of property, real estate, bank accounts, vehicles, etc. or where the parties make the choice to use attorneys, you are likely looking at a range upwards of $1,500.00, sometimes substantially so, depending on the specific circumstances.
Strategies to Reduce Costs
One way to try to reduce the cost of a separation agreement is to mediate your case. Aside from the financial benefits of directly mediating the details of your settlement rather than having your lawyers do so later on in the process, there are many personal benefits to mediation that can be cost-saving, too. While mediation isn’t as cost-effective as a DIY approach, the insights gained through face-to-face discussion with a neutral third party can help save money on the negotiation, and possibly litigation, down the road.
Do-it-yourself separation agreements are certainly not right for everyone – spouses with businesses or complex assets may need at least some legal advice during the drafting process, for example. But if the two of you are able to communicate civilly and there is no chance of you having to go to court to fight about the terms of your agreement, you can reduce your legal bill significantly.
The most basic, low-cost drafting tools require a couple of hundred dollars to purchase a generic agreement and a fillable software app to assist you in making allowances for state-specific laws. A more thorough self-help booklet or software program costs around $1,500.
Virginia’s law library system offers excellent, inexpensive, do-it-yourself options for creating separation agreements. Most of the different Virginia courts also offer low-cost legal clinics where you can get coaching directly from a judge or court attorney on how to draft your separation agreement. The information is free; you pay a one-time fee, typically set under $35, to reserve a spot in the clinic.
Engaging an Attorney vs. Drafting One Yourself
When considering whether to hire an attorney for your separation agreement, the fact that you can wing it on your own may be enticing. After all, you have a place to live, the kids are still with you, and you aren’t fighting yet. You have time.
Preparing your own separation agreement in Virginia has its pros and cons — and it may save you money (including the costs to litigate your matter before a judge if things get worse). You don’t know what you don’t know. And a do-it-yourself separation agreement may cost you more in the end when you eventually have to enlist an attorney to fix it all.
There are two types of lawyers in this situation: a family law lawyer who charges by the hour for their experience to draw up a separation agreement or lawyer limited in their legal practice to values of $20,000 or less who charges a flat fee to prepare your separation agreement. Many couples can work together to save each other money by hiring a lawyer on limited scope.
If you are looking to save on fees, the limited scope approach is less costly. While a flat fee will run from approximately $600 to $2,500 depending upon whether the consultation is brief or extensive and whether the agreement is relatively simple to draft, the hourly fee structure is around $400 per hour. If it takes only three hours to draft the agreement, then that is $1,200 — but if you end up needing a few more hours, the costs increase. It’s equal to the difference in cost between drafting a basic will ($350 flat fee) .
Separation agreements in Virginia are enforceable when signed (i.e., notarized) prior to the entry of a final divorce decree. While the court must divide property and debts, it is not required to approve an agreement as to alimony, child support or custody/visitation. While, theoretically, you could go to court and ask the judge to make it fair, it’s a likely outcome that the court will not do so. It’s fair to give and take a piece of property in exchange for a settlement regarding taxes or child support. And, with the possibility of jail time for contempt, it’s certainly reasonable to agree to a few extra hours in exchange for a few nights with the kids.
If you change your mind about some of your deal points, that’s okay. Return to the table with this notion:
You are binding future you. Future you never gets to delegate the rights granted now to you in the agreement. The General Assembly made sure that you cannot try to avoid your obligations later by saying things like, "Well, it wasn’t me really. I cast a ballot on a line without reading all the small print. That wasn’t binding." While your future self will appreciate the break you didn’t give them and the peace this will bring you both, spousal and child support are waiver-able rights that you give away via your agreement.
Virginia does make some Continue, Agree or Quit forms for the long, lonely journeys we must travel. But those forms won’t save you from future you.
When is a Separation Agreement Required by Law?
Most people know that "deadlines" are like Christmas; they have a way of sneaking up on you. But beyond just the creeping nature of time, Virginia family law has few, if any, serious deadlines for separating spouses. In fact, considering most cases take years to get to trial, the statutory 1 year separation period is an oddity in itself. Nonetheless, even though the requirements for getting divorced do not involve the exchange of money (per se), there are indeed circumstances under which the drafting and execution of a separation agreement is absolutely necessary or beneficial to the parties involved. Here are a few key examples:
Custody and Support
If you have minor children and you and your spouse can agree on a custody and visitation schedule – great. If you can do it without the involvement of lawyers – better. But if you have children you cannot negotiate or are in a dangerous or abusive situation, how does the situation resolve itself? Enter the separation agreement; not only is it possible to negotiate and draft a legally binding plan to govern the custody and distribution of each parent’s time with the children where there is no agreement – it is probably the most valuable document you will sign in this process. When executed properly, the plan will be enforceable as a settlement. It will not be adjudicated by a Judge and, consequently, will almost never be changed by a Court. Once numbers are involved, however, do not count on a Court to uphold the provisions if your former spouse has a total change of heart and decides not to pay child support or wont’ follow the visitation schedule. From this standpoint, a Judge is more likely to decide that the executed separation agreement should be enforced consistently with an Order of the Court only if "life events" warrant it.
Spousal support
Unlike custody, the Court in Virginia does not have to have a separation agreement or a divorce. While the majority of divorce trials will incorporate contested issues related to support, it is not always necessary. Where a husband and wife can agree as to the terms of the spousal support – either a permanent order or a limited award to cover a designated period of time – a separation agreement is an enforceable, binding contract on both parties with respect to the amount and length of the support payments. In such cases, it is even possible to elect out of the Court’s power to change the support in the executed agreement. A provision for death alimony is also quite common in these types of cases, but be careful to think about how that will impact what happens if one of you remarries – an important discussion to have with your attorney.
Selling or Dividing Property
It’s one thing to decide to leave the family home. It is something altogether different to figure out how to buy out your spouse’s equity. To that end, if you have real property – be it a marital home, vacation home or business – you will want to make decisions about its sale or buy-out as part of your planning. Not only is it a protection against having a spouse attempt to lay claim on the something during the period between the separation and entry of the final decree, it can ease some of the financial burden if you are going to live apart.
Conclusion and Further Information
To recap, for an uncontested matter, fees can be based on either an hourly fee for the attorney’s time or a flat fee. Because most separation agreements are done at the end of a long period of negotiation between the spouses, typically the flat fee is very low for an uncontested matter.
However, if your spouse has attorneys, or otherwise has a lot of issues of contention, the fee for drafting a separation agreement could end up being quite high. So let’s take the claim at its highest estimate: if you and your husband get into a big fight over the issues of separation and it requires 40 hours of work (and, no, that is not an exaggeration), then the separation agreement would be between $4,000 . 00-$10,000.00 according to the hourly figure in the article. The reality is that a courtroom battle is expensive, and a contested divorce is no exception. But getting to divorce can take years, and so it is difficult to estimate how many hours of work might actually go into your marital agreement.
What is your next step? If you would like my help in getting the paperwork filled out and functional, I invite you to contact me by telephone or email.