South Boston, VA asked in Divorce for Virginia

Q: If a divorce decree says property will be left to someone can a will be made after and the property left to someone else

Will the divorce decree outweigh the will since it was agreed to before and a judge signed off on it? A house is supposed to be left to the children. Can a will be made and the house left to someone else even though the divorce decree specifically says it will go to the children? A threat has been made that the house will not be left to the children if certain things are not done and I thought once the divorce was final the contents would outweigh any other thing like a will.

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1 Lawyer Answer
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
Answered
  • Glen Allen, VA
  • Licensed in Virginia

A: A judge's authority in equitable distribution in Virginia is strictly statutory and must be based on the provisions of Virginia Code Section 20-107.3. The judge has no authority to order property to be conveyed to someone other than a spouse.

Any provision beyond the authority of 20-107.3 must be based on a valid agreement between the spouses, a separation agreement that was incorporated into the final decree. Parties should honor and abide by their valid written agreements or contracts, unless and until fully performed, terminated, set aside, or voided. A material breach of a contract gives the other party the right to sue for damages or enforcement, or, in the case of an agreement made part of a court order, a contempt proceeding against the breaching party with liability for attorney's fees and costs. If the agreement provides that the contract is binding on the heirs or assigns of the party, then the contract may be enforced after the death of the spouse or ex-spouse.

Anyone with questions about the enforceability of a separation agreement should consult with an experienced Virginia divorce lawyer.

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