In Virginia, Separation Agreements, often interchangeably referred to as
Property Settlement Agreements, are legally enforceable contracts. The
law favors these agreements in divorces and their validity is presumed
absent clear and convincing evidence of illegality. The Virginia Code
provides that a court, in its discretion, may incorporate by reference
into a final divorce decree “any valid agreement between [a husband
The law presumes that any adult party who executes a Separation Agreement
is mentally competent to enter that Separation Agreement. A party may
rebut that presumption only if he or she can show that, at the time the
Separation Agreement was signed, (1) he or she lacked the capacity to
understand the nature and consequences of it; (2) it was induced by fraud;
(3) the terms of the Separation Agreement are unconscionable. Just because
the terms are one-sided does not make a Separation Agreement unconscionable.
Absent any of the above scenarios that may invalidate it, a court may
incorporate a properly executed Separation Agreement when finalizing a
divorce, and each spouse will be bound by the terms therein. Often, the
only way a properly executed Separation Agreement can be changed is by
a properly executed written amendment to the Separation Agreement, which
requires the agreement of both spouses.
Accordingly, Separation Agreements are valid contracts and a court can
enforce their terms. It is very risky to draft and sign your own legal
document. It is just as risky to download a legal “template”
and assume that the terms to which you are signing your name are favorable.
Indeed, it is rarely a good idea to sign any legal document without the
review and approval of a competent attorney. Here at the Law Offices of
Daniel J. Miller, our attorneys are well-versed in the proper drafting
and execution of Separation Agreements. If you have already signed a Separation
Agreement, it is likely an enforceable contract, but there still may be
legal avenues we can use to protect you. Call our office today to set
up a free consult on your Separation Agreement and how we can assist you
with your divorce.