The Difference Between a Court Order and a Marital Agreement


If two parties agree, they can put almost anything into a nuptial contract, also referred to in Virginia as a separation agreement or a property settlement agreement (a "PSA").

An agreement and a court order are two different instruments, and they are subject to different legal rules.  A nuptial contract can be fashioned by two parties anywhere.  If the parties have one they signed in Vermont, it can still be recognized as a contract in Va.  If the contract has a "choice of law" clause, it will be interpreted per the laws of the state designated by the parties.  In the PSA's I draft, I usually write a clause saying it will be interpreted according to the laws of Virginia.  But, if you wish, you and your spouse can stipulate that your contract will be interpreted according to the laws of another state.

By the same token, you and your spouse can enter into a nuptial contract in Virginia, specifying Virginia law as the "choice of law," and still, in theory, have it enforced in any other state or country.  So whereas two parties can choose another body of law to apply to their contract, a judge in Virginia, in the absence of a written agreement otherwise, can only apply Virginia law in a divorce decree.  A word of caution, however:  The law allows spouses great leeway in creating contracts regarding matters that affect them as adults, such as property, liabilities, and spousal support, but they have far less freedom to determine child support or even custody, if the state thinks a child's rights are not being observed.  And if jurisdiction for child support and custody lies in Virginia, only Virginia law can be applied.

Further, whereas there no residency requirements to enter into a nuptial contract, a court order of divorce, on the other hand, has strict jurisdictional prerequisites.  Per Va. Code 20-97, at least one of the parties must be, at the time of filing the suit, a resident of Virginia and have been so for the last 6 months.  As I mentioned in an earlier blog (see "Residence and Domiclle"), Virginia courts interpret "being a resident at the time of filing" to mean intent to live here indefinitely.  There is a line of Virginia appellate cases going back a century saying that not only must one of the parties have lived here for six months, but that he or she cannot be harboring plans to move to another state in the foreseeable future.

So, you can craft an agreement here that chooses Virginia law for enforcement and interpretation purposes, but if neither party plans to remain here indefinitely, you can't get a divorce here.  (There is an exception for members of the armed forces assigned to duty in Virginia.)

Strictly speaking, a PSA or any sort of nuptial agreement is a contract.  If it is breached, then the aggrieved party must seek contract "remedies."  Suing an ex for breach of contract is a separate civil action and tends to be very complicated and technical.  Almost invariably, Virginia family law attorneys opt for a process that turns a marital contract into a court order.  Court orders can be enforced far more quickly and with more severe results than a breach of contract suit.  It is a relatively simple matter to ask the court to "affirm, ratify, and incorporate" a PSA as a court order, pursuant to Va. Code 20-109.1.

If a court order is violated, an entirely different set of consequences presents itself, called contempt of court.  The offended party asks the court for a "rule to show cause" against the non-complying party, which means the court issues a summons to the offender to come to court to explain (show cause) why he or she should not be found in contempt for violating the relevant order.  This is a big deal.  The theory behind contempt is the court itself becomes the aggrieved party.  It has an inherent overriding stake in ensuring its orders are followed, for the sake of the entire court system.  Or, as the old adage from contempt rulings down the years puts it, "the court has a right to defend itself."  If you are unfortunate enough to be on the receiving end of a rule to show cause, you have offended not just your ex, but the very authority of the judicial system.  That is not a contest you want to invite.

Penalties for contempt can include fines, payment of the other party's attorney fees and costs, and even jail time.  A good portion of the road cleanup crews you see when driving the roads of Virginia are inmates jailed for not paying child support.  Years ago, I had to put a husband in jail four times for failure to pay spousal support.  In contract law, incarceration is never an option.

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