I'd like to know if a separation agreement is absolutely necessary for a divorce or can a divorce proceed without one. If a divorce can proceed without a separation agreement, would there be any differences in the proceedings compared to having a separation agreement in place? What might be the advantages of having a separation agreement in place? Disadvantages? Thank you.If one of the parties does not want a separation agreement, can a divorce proceed anyway?
As we first mentioned, one can proceed with a divorce without a separation agreement so long as the parties have been separated for one year. There are consequences of possible waiver of property rights and spousal support rights depending on the language of the Complaint for Divorce. Further, too often than not a spouse files for a divorce without claiming any property division or support needs to be determined, then the case quickly escalates into a contested divorce. This becomes further contested because oftentimes the other spouse feels that the filing party is being dishonest or hiding something by not addressing the main issues of the divorce. I would strongly suggest you speak to an area family law attorney about whether you need a property settlement agreement and what are your best options going forward. Many area attorneys provide free 30 minute consultations and reasonable rates for just drafting a property settlement agreement.
A separation agreement is not absolutely necessary to file for divorce, unless you are filing on the grounds of having no minor children living separate and apart for six months. A divorce can proceed without an agreement; however, the other party may contest the divorce and ask the court to determine division of property, spousal support, division of marital debts and custody, support and visitation regarding minor children. This can be quite expensive. If you file without having first reached an agreement, your spouse may or may contest the case and raise these issues. You should get the advice of a Virginia divorce lawyer to help you decide how to best proceed.
A comprehensive settlement agreement (a better term than a "separation" agreement) will make a divorce proceeding fast, cheaper, and less emotionally taxing for all parties. It is always the way to go if the parties have a reasonable relationship and can discuss issues in a mature, considered manner.
If you have any of these issues: property acquired during the marriage, custody/visitation issues, spousal support issues, and retirement / pension issues then yes you need a separation agreement. It is the best way to go and will save you extensive money in the long run if there is a problem down the road.
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