Separation Agreements: Be careful What You Agree To!

            Spousal Support May Not Be Modifiable Without the “Magic” Language:

If you do not include the appropriate language in a separation agreement, you will not be able to modify spousal support in the future, even if you lose your job.  Separation Agreements are an excellent choice for divorcing spouses. They provide a cost effective and lower conflict alternative to a trial.  However, it is a mistake to view them as simple and easy.  They are complex documents that are often the product of hours of negotiation between each party’s counsel.  With easy access to information and a struggling economy, many spouses elect to draft separation agreements on their own.  Unfortunately, their attempt to save a few hundred dollars up front could cost them thousands of dollars and hours of lost sleep and heartbreak in the long run.

The Law

The Virginia Code states in part that if there is an agreement between the parties for the payment of spousal support, then no court order relating to the payment of support shall be entered except in accordance with the contract.  VA Code § 20-109(C).  In plain English, if you don’t say the requirement to pay spousal support terminates upon a specific event or the support may be modifiable upon a change in circumstances, then the court will not change the amount of or stop the monthly spousal support obligation.  If your separation agreement does not state the spousal support is modifiable, the court is not going to care you were laid off or become disabled.  You still must pay the support obligation.

Take the recent case of Mr. Newman.  Mr. Newman sought to reduce his monthly spousal support obligation.  The agreement he entered into with his ex-wife said spousal support only terminated upon death or remarriage.  The court, while sympathetic to his plight, stated their hands were tied by Virginia Code Section 20-109(C).  Without language in the agreement stating the spousal support was modifiable upon a material change in circumstances, the Court could not on its own, modify the award.  It denied Mr. Newman’s request to modify the amount of spousal support.

What Should You Do?

If you are the primary income earner, don’t just sign an agreement to be nice, to be fair or just to get the painful process over with. Consult a competent, experienced attorney before you sign anything.  Too many people come to see me after they have signed a bad agreement and have no recourse.  The time to consult an attorney is before you sign. To paraphrase the old TV commercial – pay now or pay later!

We have years of experience in family law.  If you need help with a divorce, custody case, or other family law matter in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at to schedule a consultation.