Fredericksburg, VA asked in Divorce and Family Law for Virginia

Q: When a couple agree to waive rights to equitable distribution in a divorce agreement, what does that mean in lay terms?

Wording from divorce agreement: "...waive any right to equitable distribution under Section 20-107.3 of the Code of Virginia to the retirement or pension accounts, life insurance..." ALSO, I know what equitable distribution refers to, just not exactly what this phrase refers to in layman's terms. Thank you-

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

A: In resolving the incidents of marriage upon separation and/or divorce, the spouses have four choices:

1. Do nothing and allow the issues to remain unresolved;

2. Address each item of property as an individual item as necessary, typically according to actual title;

3. Enter into a comprehensive written separation agreement addressing the division of marital property and the allocation of marital debt by themselves, with attorney(s), or through mediation; or,

4. Present the issues to a judge sitting in equitable distribution incident to a divorce.

If the parties choose number 3 above, there is no longer any reason for number 4 above. If the parties enter into a comprehensive written separation agreement, there is no reason for equitable distribution. Consequently, attorneys who draft separation agreements typically include a waiver of that right, just to make it clear to all the parties that the agreement takes the place of equitable distribution.

Anyone facing separation or divorce should consult with an experienced Virginia divorce lawyer.

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