1.1 The Marital Agreement Generally

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.1 THE MARITAL AGREEMENT GENERALLY

1.101 Advantages.

A. Time Savings.

An agreement can allow the parties to resolve issues pending between them before the expiration of the statutory period for obtaining a divorce.

B. Reduced Costs.

Legal fees and costs of suit, including court reporter fees, commissioners' fees, and experts' fees, may be reduced or eliminated if the parties can reach an agreement. Of course, before the parties can enter into an informed agreement, it may be necessary to incur the cost of valuation of some assets.

C. Productive Activity.

Rather than concentrating on preparation for litigation, the parties may be able to channel their energies in a more productive manner and use creative skills to reach an agreement based on their personal knowledge of their circumstances. This is in contrast to litigation, in which a court, with no personal background on the parties' circumstances, determines their fate in a few short hours.

D. Ground Rules.

The limits of future action between the parties can be more precisely defined. For example, the agreement might require that the parties attempt to mediate modification of support and custody provisions before litigation. Ground rules of this kind can allow for a more controlled interaction among the family members and may keep disputes to a minimum.

E. Issues That Cannot Be Addressed by the Court.

The parties can reach an agreement on issues that the trial court cannot address. These include payment for the college education of children of the marriage as well as tax and estate planning issues. However, some issues may not be enforced by a court, such as an agreement eliminating a parent's obligation to support his or her child or, in a matter as yet undecided, the dissolution of a civil union or domestic partnership. ¹

F. Partial Agreement.

The parties may enter into a partial agreement covering certain issues but not others. For example, they could resolve property distribution but not support, or they could resolve issues related only to the children.

G. Review by Experts.

The document can be reviewed by experts such as CPAs, tax lawyers, or employee benefit lawyers at less expense than having these experts testify at trial.

1.102 Caveats.

A. Skillful Drafting Required.

A poorly drafted agreement invites future litigation. In order to avoid this, counsel should maintain a checklist of all provisions to be included in the agreement. ² Additionally, counsel needs to be mindful of

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