Executive Summary: In Virginia divorce cases, judges are limited by law in what they can order. However, if both spouses agree to terms in writing such as paying for college after age 18 or waiving the right to modify spousal support, those terms can become enforceable. Many people unknowingly commit to obligations a judge couldn’t have imposed, which can lead to long-term financial consequences. Always review any proposed agreement with an attorney before signing.
When it comes to divorce in Virginia, there are two ways to reach the finish line: either you reach a written agreement with your spouse, or a judge decides the terms for you in court.
What many people don’t realize is that those two paths lead to very different results, especially when it comes to what the court can order versus what it can enforce from an agreement.
Put simply: You can agree to things in a Marital Settlement Agreement (MSA) or Property Settlement Agreement (PSA) that a judge has no authority to order on their own. That includes things like college tuition and non-modifiable spousal support, which are two areas that can have long-lasting financial impacts if you don’t fully understand what you’re signing.
Here’s what you need to know.
Divorce by Agreement vs. Divorce by Court Order
In Virginia, a divorce can be finalized in one of two ways:
- Agreement – The spouses negotiate and sign an MSA or PSA, which is later incorporated into the final divorce decree.
- Litigation – The spouses go to trial and a judge issues a ruling on each issue.
Both paths are legally valid, but they’re not equal in terms of what outcomes are possible. Courts are limited by Virginia law in what they can order. But if both parties voluntarily agree to terms, even terms a judge could not have imposed, those terms can still become enforceable if they’re included in a properly drafted and incorporated agreement.
College Expenses After Age 18
A good example of this is child support after a child turns 18.
Under Virginia law, your legal obligation to support your child ends at emancipation, typically when they turn 18 or graduate high school (whichever comes later, but no later than age 19). A judge cannot order one parent to pay for college. The law simply doesn’t allow it.
But here’s the catch: if you and your spouse agree to pay for your child’s college expenses, you put that agreement in writing, and have it incorporated into your divorce decree, then the court can enforce it. It becomes part of a binding court order, even though the judge couldn’t have ordered it on their own.
This means that if your agreement stipulates that both parents will split the cost of a four-year college education including tuition, room and board, books, and fees, the court will enforce this agreement, even after the child is legally emancipated.
Non-Modifiable Spousal Support
Here’s another area where people often get tripped up: spousal support.
A judge in Virginia can award spousal support and set the amount and duration. But they cannot make it non-modifiable. That means if your financial situation changes in the future, you can ask the court to adjust the support amount based on a “material change in circumstances.”
However, you can waive that right by agreement.
If your divorce agreement says spousal support is “non-modifiable,” and that language is clear and included in your final court order, you’re locked in. Forever. That applies even if your income drops, even if you retire, even if you can no longer afford the payments.
This is especially risky when long-term or indefinite support is involved. There are cases where people have agreed to pay $5,000 a month for the rest of their lives and years later, they’re living on Social Security but still on the hook for that same amount.
No judge would ever order that. But if you agree to it and put it in writing, the court will enforce it.
Why This Matters
If you’re going through a divorce, it’s easy to assume that whatever ends up in writing has already been vetted by the court or somehow meets Virginia’s legal standards. But that’s not the case.
An agreement is just that—an agreement. And while it can offer flexibility and help avoid a long court battle, it also puts more responsibility on you to understand what you’re signing.
That’s especially true in areas where the court has limits. Just because a judge can’t order something doesn’t mean you can’t agree to it, and once you do, it’s very hard to take it back.
Talk to a Family Law Attorney Before You Sign Anything
At Rinehart Bryant, PLLC, we work with people across Stafford, Fredericksburg, Spotsylvania, and the surrounding counties to make sure their divorce agreements are fair, enforceable, and built to protect them long-term. If you’re considering a settlement agreement or wondering whether yours is enforceable, reach out to us. We’re here to help.
Rinehart Bryant, PLLC
