Divorce courts generally favor settlement agreements. The courts presume that each party is capable of negotiating a fair resolution of financial matters, such as division of property and payment of alimony. However, some aspects of a divorce are non-negotiable. Judges must approve any agreement concerning child custody or child support to make certain that it is in the best interests of the children. To that end, courts sometimes invalidate provisions that appear to be unfair or excessive.

In 2022, a Virginia family court ruled that a divorce settlement cannot put limits on a parent’s romantic relationships during periods of custody. In Powell v. Knoepfler-Powell, the spouses’ property settlement agreement included a clause that required each parent to “exercise great care” prior to introducing their children to anyone with whom that parent might have a romantic relationship. The clause also prohibited each parent from having overnight guests of the opposite sex not related to the parent when the child was in that parent’s custody. The purpose of the clause was apparently to shield the child from exposure to the parents’ “casual, temporary and fleeting romantic interests.”

The family court ruled that this clause in the agreement was unenforceable. The first part, the court stated, was void for vagueness. That is, the term ”great care” was too ambiguous to be used as a basis for holding a parent in contempt for a violation. Moreover, the restrictions on romantic relationships were held to violate each parent’s fundamental liberties — namely, the rights to freedom of association and freedom of speech. Although custody provisions in divorce settlements often place restrictions on the conduct and situations to which a child may be exposed, there is a difference between prohibiting potentially harmful conduct and regulating other conduct that on its face does a child no wrong.

In the Powell case, the court found that the attempt to control romantic relationships was an unconstitutional prior restraint on the fundamental rights of each party. Even though the restraint was imposed by a contract between private parties, it would be up to the courts to decide the issue in the event that the former spouses had a dispute regarding romantic partners. It thus seems unlikely that the Virginia courts would recognize any divorce agreement provision that restricts ex-spouses’ relationships with romantic partners.

Harding, Harding & Harding is one of Virginia’s most experienced and trusted family law firms, with deep experience in crafting enforceable divorce settlements. We have offices in Virginia Beach, Chesapeake and Norfolk. Feel free to contact us online or call 757-499-2600 for an initial consultation.