Also called Property Settlement Agreements, it pays to understand what you are signing.
If there are issues that need to be resolved in a divorce case, there are two ways to resolve them. The first is to go to trial and have a judge resolve the issues. The second is for the parties to a case to reach an agreement. Reaching an agreement to settle the issues in a case is often preferable to going to court (for an explanation of why this is the case, click here).
If you do enter into an agreement with your spouse, it is critical to ensure that the agreement is prepared correctly, and that it accurately accomplishes your goals. Poorly drafted or vague agreements can often cause more problems than they solve.
What Marital Agreements Do
One of the benefits of working out an agreement with your spouse is that you can largely agree to whatever the two of you would like to do (however, as with most legal matters, there are always exceptions). Just as every family is different, every marital agreement will be different depending on factors such as: whether the parties have children, what kind of assets the parties have, etc.
Typically, marital agreements can address just about any issue that arises out of the parties’ marriage, such as:
Whether one spouse will be paying spousal support, or whether a party is waiving his or her right to spousal support.
If there will be child support, and if so, how much?
How to divide retirement accounts.
How to deal with real estate that the parties own. If there are joint loans or mortgages, will these be refinanced? Will the property be sold? If so, how will the proceeds be split? Is one party buying out the other party’s interest?
Custody and visitation of minor children. Where will the children live? What visitation can each parent expect to have with the children? How will holidays like Thanksgiving and Christmas be handled? What about issues like vacations or international travel?
Dividing bank accounts or investment accounts.Specifying who will be responsible for marital debts like credit cards or auto loans.
Obviously, these are important issues. So it is important that the agreement be well prepared. Often, poorly drafted agreements may be unclear on specific details that will be important later on. Hiring an experienced attorney to help with preparation of your marital agreement can help avoid this. Lawyers who practice family law will have an understanding of what the legal requirements of marital agreements are as well as many of the common problems that come up in family law cases – and the best way of dealing with them.
“Incorporating” Agreements Into Court Orders
Once an agreement is signed, it will typically be “incorporated” into a court order or Final Order of Divorce. Virginia Code Section 20-109.1 allows the court to “affirm, ratify and incorporate” a “valid agreement between the parties” into a court order, or decree. This is significant because it allows for a more effective means of enforcing the agreement than might otherwise be available: contempt of court.
A party can be considered to be in contempt of court when he or she has willfully failed to comply with an order of the court. Once the terms of an agreement are incorporated into a court order or decree, failure to comply with the terms of the agreement can lead to contempt proceedings.
Once signed, agreements can be difficult or impossible to undo. Marital settlement agreements typically become effective once signed. Per Virginia Code Section 20-155, a marital agreement may also be entered into without signature if the terms of the agreement are transcribed by a court reporter and the parties affirm their agreement on the record.
While there are legal causes of action that allow a party to claim that he or she was forced into an agreement under duress, such claims are rare and require particular circumstances to be present in order for the claim to succeed.