Legal Question in Family Law in Virginia

Re: Separation Agreenment

A separation agreement is not necessary to obtain a divorce, but can be useful. If you both agree to divorce noncontested and have a separation agreement it can significantly reduce the time and expense. A separation agreement is not necessary to establish that you and your husband are living separately. What is necessary is that you do not co-habitate for a period of a year prior to filing for divorce. (if there is a separation agreement and no minor children it is reduced to 6 months).

An attorney does not need to draft your separation agreement but can be very advantageous in doing so. An attorney will not only do so completely and accurately, he/she will see that your interests are protected. The cost of the agreement will depend upon what is contained in it--how much property, any children etc.

Re: Separation Agreenment

The cost of a "separation agreement" depends on whether it is just that, an agreement to separate (which could be done with three sentences) or a more comprehensive separation, support and property settlement agreement, which would deal with all matters related to the marriage, including separation, custody, visitation, support, property and retirement issues. A comprehensive agreement should be prepared by an attorney - there are too many traps to avoid to take the chance of doing it yourself. The cost would likely be in the $500 to $750 range.

In Virginia it is necessary to already have grounds for a divorce before filing a divorce petition. In your case, wince you have minor children, the grounds would be having lived separate and apart for more than one year, coupled with the intent that began more than one year ago and continues to the present that the separation be permanent and intended to lead to a divorce.

Having a separation agreement merely helps prove the intent and confirms the date of separation. It will still be necessary to have one of you plus a third-party witness testify that you have intentionally lived separate and apart for more than one year, without cohabitation and without interruption. Thus it would be necessary to have the corroborating witness testify that he or she had visited you or your husband several times during the period of separation and had seen no evidence that the two of you were living together.

When there are children involved, the somewhat arcane requirements of the Virginia Code suggest you should be represented by an attorney; I have been asked many times to complete a divorce for someone who tried to go it alone without an attorney, only to be frustated in their efforts.