Legal Separation Agreement or Separate Maintenance
Updated January 31, 2023
What is it? A separate maintenance action is the closest thing you will find to a legal separation in the Commonwealth of Virginia.
Separate Maintenance is an action filed in the Circuit Court used to request custody, visitation, spousal support, and child support. It is not a divorce action so property issues, such as the house, investment accounts, retirement accounts, debt, etc.…are not part of the suit.
Why would I file a Separate Maintenance action rather than a divorce action?
If you do not have fault grounds, do not have a separation agreement or you have children, you will have to wait a year to file for divorce on no-fault grounds.
However, many people need temporary relief immediately, not a year from now. The only proviso to this action, is that you cannot be guilty of a fault ground (adultery, desertion, or physical abuse).
Doesn’t the Juvenile and Domestic Relations District Court also have jurisdiction to hear the same issues? 
Yes, they do, and you can file in the Juvenile Court. The problem we are facing in most jurisdictions is that the Juvenile Courts are only allowing three hours to put on the entire case and if one party does not like the result, they can appeal to the Circuit Court and get a trial de novo (a re-do).
In many instances, starting in the Juvenile and Domestic Relations District Court can be more expensive then filing in Circuit Court, getting temporary orders and then consolidating the separate maintenance action with the divorce action after the one-year separation period.
Separation Agreement Frequently Asked Questions
Clients often have a lot of questions as it relates to separation agreements. The below is a list of the most frequently asked questions. This list may not be all encompassing, and your question may not be answered below. As every client’s circumstances are unique, we encourage you to contact us for a consultation if you are beginning the separation process.
What is a separation agreement?
Lawyers call the settlement agreement by different names. It can be called a marital settlement agreement, a separation and property settlement agreement, or a support and property settlement agreement, among other titles. They all mean the same thing. This is a contract between you and your spouse that sets all the rights and liabilities. The agreement includes, custody (if applicable), support (spousal and/or child support), houses, vehicles, personal property, bank accounts, investments, retirement accounts, and businesses.
Why is a separation and property settlement agreement important?
If you have marital property, joint debts, or children, it is important to have an agreement properly prepared. If you have children or you have marital property and/or debts, you won’t get a divorce until these issues are resolved by the parties, in writing, or by the Court.
Do I need a separation agreement lawyer?
All divorce attorneys draft separation agreements. The question is, do you have a complex case or not. While it is not strictly necessary to hire a separation agreement lawyer, I strongly discourage entering into a separation agreement without consulting with an attorney. Separation agreements are legally binding documents, so it’s important to understand it fully and ensure it is in your best interest before you sign it. Too many people come to see me when they did not read the agreement but signed it and find themselves owing the other party thousands of dollars, which they never would have agreed to if they had an attorney review it before signing it.
Is a separation agreement valid if I signed without consulting my attorney?
YES. This is one reason I highly recommend speaking to a separation agreement lawyer before you sign anything.
How long does a separation agreement last?
The agreement lasts until all obligations are completed, such as child support, or when one of you passes away. When it comes to children, the court retains jurisdiction until the children are 18 and emancipated. Based on a material change in circumstances, the Court can modify custody and child support.
Do courts review the fairness of a separation agreement?
No. The only time a court will review the fairness of the agreement is when one party files a motion to set aside the agreement based on fraud of some form. In one case, the wife relied on the husband’s assertion that the house had no equity and showed her a fake appraisal. After signing the agreement, the wife came to me to help her understand the terms of the agreement. Yes, this should have been done before she signed the agreement, not after. But I deviate. We filed a motion to set aside that portion of the agreement. For those of you who are curious, the husband’s counsel agreed to have the house appraised and he did pay her half of the equity.
Do I have to file a separation agreement in the court?
99% of the time we need an agreement. I have done some divorces without an agreement when the Juvenile Court had in place orders for custody, visitation, and support and the parties had no property together. The other time is when it is a short-term marriage, and there was no marital property.
Legal Separation Agreement Lawyer in Virginia
If you are considering separating or divorce and would like to understand when to file for separate maintenance in Virginia, you should consult an experienced divorce attorney. Likewise, if you would like to appeal a child support ruling, an attorney at our firm can help. To learn more, contact Cook, Craig, & Francuzenko.
