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 and wife].”
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.