VIRGINIA PROPERTY SETTLEMENT AGREEMENT ENFORCEMENT

As long as the separation agreement is not incorporated into a divorce decree, it does not get the sanction of a court order.  Hence, it is not contempt of court to violate a separation agreement unless the agreement has been made a part of a court order. However, these agreements are in the nature of contracts and can be enforced like any other contract.

Va. Code Ann. § 20-155 provides that:

[M]arried persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution.

[M]arital property settlements entered into by competent parties upon valuable consideration for lawful purposes are favored in the law and will be enforced unless their illegality is clear and certain.  Palmore v. PalmoreVa. Ct. App. June 27, 2000.

[P]roperty settlement agreements are contracts; therefore, the court of appeals applies the same rules of interpretation applicable to contracts generally.  O’Connor v. O’Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

Va. Code Ann. § 20-109(C) provides that in suits for divorce, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee establishing or imposing any other condition or consideration, monetary or non-monetary, shall be entered except in accordance with that stipulation or contract.

In Dielman v. Dielman, Va. Ct. App. July 19, 2005, the husband and wife married, separated, and thereafter decided to divorce. They entered into a handwritten agreement that the wife would agree to sign on a loan for the husband. In return, the husband agreed not to sell the marital home until after the loan was paid off in full. After the agreement was executed, the trial court heard evidence on, inter alia, the value of the marital assets for purposes of equitable distribution. The parties presented the handwritten contract as a post-separation agreement governing the payment of the loan and the timing of the sale of the marital residence. The trial court declined to enforce the parties’ agreement and found that it was in the best interest of the parties and their minor children to immediately sell the house and pay off the parties’ debts. On appeal, the appellate court found that the trial court erred in declining to enforce the parties’ handwritten agreement regarding the timing of the sale of the marital residence as the agreement was valid and, thus, pursuant to Va. Code Ann. § 20-109, its terms had to be enforced.

The Dielman court cited two statutes; Code § 20-155 or the Premarital Agreement Act  and Code § 20-150. This statute allows the parties to contract with respect to, inter alia:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
3. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

In Afghahi v. Ghafoorian, Mar. 30, 2010, the appellate court held that the trial court did not err in awarding an amount of gold coins to the wife because it found that the amount was due under an Iranian premarital agreement, which was a premarital contract under § 20-150, and, thus, the coins were not marital property subject to equitable distribution under § 20-107.3.  The Court observed thus:

[I]n Virginia, parties are permitted to enter into premarital agreements, which are akin to contracts, in which they can “contract with respect to . . . [a]ny other matter,  including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” Code § 20-150.