Property Settlement and Separation Agreements in Virginia

Virginia requires spouses to live separately for at least one year before filing for a no-fault divorce.

There is one exception though. If there are no minor children of the marriage and if the spouses have already signed a Property Settlement and Separation Agreement (sometimes also called a Marital Settlement Agreement) that disposes of all property and debts, then the waiting period is reduced to six months. For consistency, we refer to it as a Property Settlement and Separation Agreement.

What Does a Property Settlement and Separation Agreement Usually Include?

A Property Settlement and Separation Agreement is more than just a property division document. It contains provisions such as:

• Enforcement clauses (setting out remedies if one spouse doesn’t comply)
• Allocation of responsibility for subsequent debts or extensions of credit taken by either spouse
• Declaration of full disclosure of all assets by both spouses
• Agreement on payment of court fees and court costs

These provisions can make the divorce process clearer and reduce the chance of disputes after the divorce is finalized.

Why Some Virginians Don’t Want a Property Settlement and Separation Agreement

Some filers prefer to not use a Property Settlement and Separation Agreement because:

• They do not want to read/sign a lengthy legal document.
• They have already divided any property and debt.
• Neither spouse is going to be receiving spousal support.
• They do not have minor children together.

In those situations, a Property Settlement and Separation Agreement is not technically required under Virginia law.

How do I file for divorce without including a Property Settlement and Separation Agreement?

If no agreement is going to be used, all references to a Property Settlement and Separation Agreement must be removed from the Affidavit of Plaintiff and the Final Decree of Divorce before filing. Each document should be downloaded in MS Word. On the Affidavit of Plaintiff, remove the paragraph that states that the parties have entered into an Agreement. (Note: Virginia Beach has its own Affidavit of Plaintiff, and on that version, you must uncheck "yes" and check "no" to the parties having a written Property Settlement Agreement, and uncheck "yes" to the parties wanting the agreement affirmed/incorporated.) On the Final Decree of Divorce, there are two separate paragraphs that reference a Property Settlement and Separation Agreement, which both must be deleted.

Bottom Line

• One year of separation is required in all Virginia no-fault divorces UNLESS there are no minor children and a signed Property Settlement and Separation Agreement has been signed by both spouses before the Complaint for Divorce is filed in which case it is reduced to six months.
• The Property Settlement and Separation Agreement often contains helpful provisions such as waivers, enforcement clauses, and disclosures.
• Couples who choose not to use one or who have been advised by the judge not to use one must ensure the applicable documents are edited to remove any references to it.

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