A Property Settlement Agreement or Separation Agreement is a contract, executed by husband and wife, in which the parties divide their marital assets and debts as well as settle any other issues arising out of the parties’ marriage. The goal of the Property Settlement Agreement is to settle as many issues as possible between the parties to avoid the time and expense of litigation. A standard Property Settlement Agreement includes the division of marital assets and debts (such as real estate, automobiles, furnishings and savings accounts) and resolution of other matters such as spousal support, child support, child custody, visitation rights, and health insurance coverage.                       

           An attorney should prepare the Property Settlement Agreement to ensure that all matters are properly addressed and the legal terminology is accurate. If the parties cannot reach an amicable settlement of all issues, whatever issues remain unresolved will be decided by a judge after depositions of the parties and their witnesses have been taken.

        When someone is considering a separation or divorce, he or she should consult an attorney who specializes in domestic relations law. The state bar referral service can assist people by providing the names of local attorneys who specialize in domestic relations matters. Most attorneys, including our attorneys, charge a fee for an initial consultation. Further, attorneys generally ask for an advanced fee and/or retainer when they are hired to represent a client for a specific case. This practice is customary, although the amount of the advanced fee to retain the attorney will vary from attorney to attorney.            

       As the divorce action proceeds each month, the client’s legal fees are totaled, and the sum is deducted from the original advanced fee. This process continues until the fee has been depleted. Then the client is generally asked to provide an additional advanced fee and/or pay for the legal services each month in full until the case is completed. Without question, divorce litigation can be very costly, but the counsel of a good attorney in a divorce action is vital.             

       Legal representation is highly advisable, even if only for advice concerning a no-fault divorce. Everyone needs to understand what his or her rights and responsibilities are when a marriage is ending.

In order to best navigate the divorce process, it is essential to understand the different ways that the issues of divorce may be resolved.

Litigation - People most often think of litigation when they think of divorce.  Litigation may be necessary when spouses are unable to resolve the various issues involved with divorce.  Sadly, divorce litigation is generally emotionally and financially costly.  Fortunately, there are alternatives.

The Kitchen Table or Do-It-Yourself Approach – Spouses are always free to discuss and agree upon resolutions for some or all of their issues.  In some instances, spouses are unable to communicate meaningfully, but, when communication is possible, the method can be the least expensive and most effective.  This method can also help to define and narrow the issues between spouses. 

The Traditional Lawyer-to-Lawyer Approach – Spouses can negotiate through their lawyers.  This can be done prior to litigation.  This approach generally also coincides with litigation, meaning that the parties will continue to negotiate a settlement while litigation proceeds.  If a settlement can be reached on some or all issues, then litigation can be avoided in part or totally.

Mediation – Mediation is a process where the parties meet with mediator and try to resolve the issues between them.  The mediator is a neutral third-party whose sole job is to facilitate the reaching of an agreement.  The mediator cannot make decisions for the parties.  Mediation can be done with lawyers present or without lawyers.  Some people opt to participate in the mediation without the presence of their lawyer, but then have their lawyer review the agreement before signing it.  The important thing to remember is that a mediation is an opportunity to reach an agreement.  Neither party is committed to entering into an agreement.  Each party is free to terminate the mediation at any time.  Mediation can be done prior to initiating litigation or during the litigation process.

The Collaborative Approach – The collaborative approach is a process where a divorcing couple commits to working together to resolve their issues without litigation.  It is done with the assistance of lawyers and, when the couple chooses, with the assistance of family specialists and financial experts.  The couple also commits to full disclosure of information.  The collaborative approach can help a couple reach an enduring agreement which can be especially beneficial when children are involved.

No single approach is best for all situations.  Every family has its own unique circumstances.  Anyone considering separation or divorce should discuss these various options with a lawyer.

       Divorce is often a slow and painful process. But people can and do make it through this difficult time period.

      If a separation is imminent, it is essential to have a strong support system (family, friends, a minister or pastor) to help face the difficulties that lie ahead. I also recommend that my clients consider counseling with a licensed social worker or counselor who is trained in handling divorce-related issues. Unfortunately statements or admissions made to a counselor or therapist often are not protected during a divorce proceeding. Accordingly, the need for counseling for an individual must be weighed against the risks of the contents of counseling sessions being revealed in Court. 

     I also encourage my clients to consider, and ask their spouse to consider, marital counseling before proceeding with divorce. A trained counselor or therapist may be able to sort out the issues and assist couples in addressing those issues, perhaps even leading to reconciliation. Even if reconciliation is not an option, counseling can definitely help both spouses cope with this major life crisis. A counselor can also help parents deal with the anxiety and stress their children may be feeling as a result of the separation and divorce.

Virginia Code Section 20-91(A)(9)(a) permits the granting of a divorce after the parties have lived "separate and apart without any cohabitation and without interruption for one year."  Only six months is required if the parties have entered into a separation agreement and do not have children in common.

In today's difficult economic times, many couples cannot afford the cost of two residences.  They wonder whether they can live "separate and apart" under the same roof.  The short answer is yes.

Virginia case law is clear that couples may live under the same roof and still live separate and apart.  See Bchara v. Bchara, 38 Va.App. 302 (2002).  The court will examine the particular circumstances in each case to determine whether the parties have in fact lived separate and apart.  There is not a finite list of circumstances which a court might consider, but generally courts will consider such factors as whether the parties have been sharing a bedroom, whether they have been having sexual relations, whether they have separate bank accounts, whether they are seen together in public, whether they hold themselves out as a married couple, whether they share household duties (shopping, cooking, cleaning, maintaining the home, etc.), and the like. 

There is no sure set of factors which will establish that you are living separate and apart from your spouse under the same roof.  The courts must evaluate each case based upon its particular facts.