Is a purported settlement agreement signed by the parties’ attorneys but not by the parties themselves binding in a Virginia divorce proceeding?
No. In Jordan v. Jordan, Civil Action: CL09000213-00, the Hanover County Circuit Court ruled that Virginia Code §20-149 required that such agreements must “be in writing and signed by both parties” and that the plain meaning of the statutory language should apply.
In Jordan, the husband argued that the agreement should be considered invalid under Va. Code §20-155 and §20-149. While Va. Code §20-150 allows for parties to create such agreements in order to properly distribute assets upon a marital dissolution, Virginia Code §20-149 stipulates that these agreements must “be in writing and signed by both parties.” In Virginia Code §20-155, however, the statute states, “If the terms of such agreement are (i) contained in a court order endorsed by counsel or the parties or (ii) recorded and transcribed by a court reporter and affirmed by the parties on the record personally, the agreement is not required to be in writing and is considered to be executed.” The consequences of this particular code section are explored in more detail in to the “Authorized Case Study: Contempt of Court” post in this blawg. Because the appellate courts of the Commonwealth of Virginia had not ruled on the issue of whether an attorney’s signature would suffice in the place of a client’s signature on a settlement agreement, Jordan involved a case of first impression before the Hanover County Circuit Court, and this issue of statutory interpretation became the deciding factor in the court’s analysis.
Both the husband and wife in Jordan did not dispute that the agreement had not been read into the record nor had a mutually endorsed court order been presented. However, the parties’ attorneys had signed a “term sheet,” a loose accumulation of the attorneys’ negotiations of the equitable distribution of the assets and the terms of spousal support. Relying upon the Court of Appeals’ decision in Gaffney v. Gaffney, 45 Va. App. 655, 613 S.E.2d 471 (2005), the Hanover County Circuit Court judge agreed that the General Assembly intended to use Va. Code §20-155 to displace the common law principles of agency that would have endowed the agent with the authority of the principal. Based on the language of Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934) see also Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E. 2d 672, 274 (1990), the Court determined that the plain language of the statute should serve as binding on the court, and the official procedures of the Code Section meant the clients’ attorneys could not sign the agreement and have it be enforceable against the parties in this case.
You should consult with your Virginia divorce lawyer concerning whether any alleged agreement may be binding upon you.