Legal Memorandum: Breach of Contract Claim in VI

Issue: Are the essential elements of a claim for breach of a property settlement agreement similar to the elements of a breach of contract claim in Virginia?

Under Virginia law, the plaintiff bears the burden to prove each of the essential elements of a breach of contract claim by a preponderance of the evidence.  Geske v. Alizon (Va. Cir. Ct. July 6, 2006).  There are three essential elements plaintiff must show:  (1) there must be a legally enforceable obligation that defendant owes plaintiff; (2) defendant must breach this obligation; and (3) there must be damage caused by the breach.  Filak v. George, 594 S.E.2d 610, 619 (Va. 2004).  In addition, to maintain an action on breach of contract, plaintiff must bring the action within five years of breach on a written contract and within three years on an oral one.  Va. Code Ann. § 8.01-246(2), (4).  Further, where the party alleged to have breached a contract is dead, the plaintiff must show that the cause of action against the decedent survived his death.  See Va. Code Ann. § 8.01-25; Rutter v. Jones, Blechman, Woltz & Kelly, 568 S.E.2d 693, 695 (Va. 2002).

The same general principles stated above apply to property settlement or separation agreements, no less than to other types of agreements.  See Ericson v. Ericson, No. 2411-06-2 (Va. Ct. App. July 3, 2007).  As noted above, in order to satisfy the first element of a breach of contract claim, plaintiff must show that the parties created a legally enforceable obligation.  To do so, the plaintiff must show, inter alia, the creation of an obligation that is “reasonably certain.”  Id.  A contract will be found to […]