Boilerplate Provisions in Virginia Separation Agreements

When negotiating a marital settlement agreement or separation agreement, you will inevitably hear your counsel talk about certain standard “boilerplate” provisions. You will probably just glance over these provisions, and your attorney will likely only touch on them briefly while focusing on the meat of the agreement—custody and visitation, support, property, debts, retirement, etc. Unfortunately, such a crude review of these provisions could prove costly.

Take for example the case of Hale v. Hale (2003), wherein Wife was awarded a portion of both Husband’s employer-provided pension plan and his employer-contributed 401(k). Wife had sought an equitable distribution of both assets, while Husband had maintained that only the pension plan was to be divided per the parties’ separation agreement. The agreement referred in its retirement provisions to the “pension plan” in the singular. However, the heading of the retirement provisions and the parties’ boilerplate preamble language both referred to pension benefits and property rights in the plural. Thus, over Husband’s objection, and despite the singular use in the actual retirement language of the agreement, the court ruled that Wife was entitled to a portion of both the pension plan and the 401(k).

As the Hale case illustrates, standard provisions in separation agreements should not to be taken lightly. Despite being called “standard” and “boilerplate,” they are still substantive provisions that carry real consequences.

Here are a few of the important boilerplate provisions in Virginia separation agreements, with explanations of their purpose and effect:

1. Freedom from Interference. In Virginia, you are married until the time a judge signs a final order of divorce. Even if you enter into a fully executed separation agreement with your spouse, you are still married. So, family law attorneys typically include a provision in separation agreements stating that each party may go about their lives as if they were unmarried, free from the meddling, harassment, and intrusion of the other. Further, because the whole agreement will be incorporated into the final divorce decree, this provision survives the divorce and, in the event one spouse is harassing the other, meddling in their life, or interfering with their day-to-day, the violating party could later be found in contempt.

2. Proceeding on No-Fault Grounds. Once parties have fully executed a separation agreement which resolves any and all issues arising from their marriage, there is really no reason for them to proceed with a divorce on fault grounds. So, it is typical for parties to agree to proceed with a divorce only on no-fault grounds. It is also advisable to include language that such a provision is material to the agreement, and that proceeding on a fault ground will be considered a material breach of the agreement.

3. Counsel Fees and Enforcement. Does each party agree to pay their own attorney’s fees for the drafting, review and negotiation of the separation agreement? Is one party paying all or a portion of the other party’s attorney’s fees? What if one party breaches the terms of the agreement, and the parties are forced into litigation—does the defaulting party pay the other party’s attorney’s fees in such an event? All of these questions should be addressed in every separation agreement.

4. Voluntariness, Inducements, Advice of Counsel, Disclosure of Finances, Sound Mind, Etc. These provisions are crucial to the validity and strength of the agreement. In the event a party later argues that the agreement is not valid, was executed under duress or coercion, or was unconscionable at the time of signing, these provisions may be the key to the agreement holding up in court.

5. Additional Instruments and Further Assurances. These provisions require parties to execute all documents and take any other steps that are necessary to carry out the intent and meaning of the agreement. For example, if the separation agreement provides that Wife will receive a certain vehicle titled in the names of both parties, but does not specifically require Husband to transfer title to her, this type of provision would kick in and require Husband to sign the Certificate of Title.

6. Reconciliation. Yes, it happens—parties to a separation agreement do sometimes reconcile. It is important to specify what happens to the agreement and parties’ obligations in the event a reconciliation occurs.

7. Other provisions. Your separation agreement should also include the following standard provisions, each of which you should discuss with your attorney:

• Life Insurance and beneficiary designations;
• Bankruptcy and the dischargeability or non-dischargeability of obligations under the agreement;
• Waiver of Claims Against the Estate of the Other;
• Relinquishment of Claims Against the Estate of the Other;
• Severability and whether the whole agreement is deemed invalid in the event a portion of the agreement is found invalid or unenforceable;
• Modification of the agreement or its terms;
• Entire Agreement;
• Incorporation of the agreement into the parties’ final divorce decree, so that the provisions of the agreement can be enforced by the court and the court’s contempt power can be employed;
• Prior Agreements Invalidated;
• Situs, which defines which state’s law shall govern the agreement;
• Binding Effect;
• Omissions; and
• Headings and whether or not they shall be considered in the interpretation of the agreement’s provisions.

In conclusion, there are two lessons you should take away from this reading: (1) do not draft your own separation agreement or, if you do, have an experienced family law attorney review it before you sign; and (2) ask questions! If you don’t understand something, if you’re confused about language of the agreement, remedies, or consequences enumerated, or if you just need reassurance, then ask your attorney.

The divorce lawyers at Livesay & Myers, P.C. have years of experience in the review, drafting and negotiation of separation agreements. If you are facing a separation or divorce in Northern Virginia, contact us to schedule a consultation today.