In a recent blog post, I discussed the basics of a property settlement agreement. In Virginia, a separation agreement is a legal contract between a married couple that has decided to separate and/or divorce. The agreement resolves a number of issues, including: how to divide-up property amongst the spouses, bank accounts, debts, who pays spousal support, how much and for how long, who gets custody of the children and what will the other parent’s visitation with the children be, as well as who will pay child support and how much it will be. The agreement should be as specific as possible and address all issues so that you can avoid having to go to court and litigate any ambiguities or situations not covered by the agreement.
Once you and your spouse have signed the agreement, it becomes a legally binding contract that both of you must abide by. This means that you can sue your spouse or ex-spouse for damages if they breach the agreement and to force compliance with its terms. The only way to be excused from following the agreement is to prove that the contract is legally invalid because it was signed under duress, was procured by fraud or that you or your spouse lacked the mental capacity to consent to the agreement. This is typically very hard to establish when it comes to property settlement agreements because you and your spouse are presumed to have read and understood every term before signing the agreement. Generally speaking, the agreement will also be incorporated into the final divorce decree. This means that should either you or your spouse violate the terms of the agreement, the court is able to hold the violating party in contempt, including imposing fines and/or jail time for the violations.
So, what happens if you change your mind after signing a separation agreement? You should hire a knowledgeable family law attorney and play nice with your spouse or ex-spouse. Why, you might ask? Because unless your lawyer can show that the agreement is invalid, your only option to modify the agreement is if your spouse or ex-spouse consents to the change(s).
There is one exception. If you include in your separation agreement a provision that states the terms can be modified upon a material change in circumstances affecting you or your ex-spouse, then you can petition the court for a modification. At the hearing on your petition, you will need to demonstrate to the court that the change in circumstances actually prevents you from complying with the terms of your agreement. This generally applies to child custody, visitation, and child support matters. Such issues always remain modifiable, even if agreed to in the property settlement agreement, upon a showing of material change is circumstances and that it is in the best interests of the children.
Be aware – simply changing your mind will not constitute a material change in circumstances!
If you are considering a separation agreement or want to modify one, you need the help of a qualified family law and divorce attorney. Your lawyer can ensure that your agreement is specific enough and covers all of the issues, or they can fight for your rights and attempt to get you the changes that you desire. The family lawyers of the DiPietro Family Law Group have decades of experience with all family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC.
Contact us today for a consultation at (888) 530-4374.