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How is Property Divided During a Virginia Divorce?
Under Virginia divorce laws, courts must follow the principle of equitable distribution in the division of marital property. Throughout the divorce process, couples have various opportunities to agree between themselves on a fair division. However, if the divorcing spouses cannot resolve property division issues on their own, then the court will make a decision on their behalf after a trial or hearing on the matter.
Distribution of Marital Property
For the purpose of distribution in a divorce case, property is classified as marital property (property which belongs to the marriage) or separate property (property which belongs to either of the two parties). In general, marital property refers to property that either partner obtained or earned during the course of the marriage.
Separate property means property that belonged to only one party prior to the marriage. It includes property received as a gift or inheritance by only once spouse during the marriage, such as a gift of a rare painting collection from the wife’s grandfather to the wife alone or an inheritance upon the death of the husband’s great uncle to the husband alone.
Marital property may also include any property used for the benefit of the marriage or shared with the other partner, even if it initially was separate property. In a divorce, the most common forms of property divided are real property such as the family residence, personal property such as jewelry, and intangible property such as retirement benefits, dividends, and income.
Marital Property vs. Separate Property
An important thing to remember is that both the assets and liabilities under marital property will be divided between the separating couple. How is marital property distinct from separate property?
Any property that belongs to one of the following categories is considered separate property:
- Acquired prior to the date of marriage
- Acquired during the marriage as an inheritance or gift intended for only one of the parties
- Acquired during the marriage through the sale of a separate property owned by only one spouse
- Property specifically categorized as “separate” and hence not divisible in divorce proceedings under the tenets of a prenuptial agreement
While there may be some cases in which property is categorized as separate, if it does not fall into one of the categories mentioned above, it will likely be seen as marital property.
Elements Considered in Division of Property in a Divorce Case
In order to divide property, the court must classify any disputed property as marital property or separate property, and assess the value of the property, typically using the information provided by the couple. After the court values all property, it will divide it on the basis of various factors, such as:
- The contributions of each spouse, both monetary and non-monetary, to the welfare of the family as well as to the acquisition, upkeep, and maintenance of the marital property during the marriage
- The duration of the marriage
- The age and mental and physical condition of the spouses
- How and when the parties acquired the marital property
- The debt and liabilities incurred by each spouse
- The liquid or non-liquid character of all marital property (cash being the most common “liquid” asset)
- Tax implications of the property
Monetary contributions refer to property (apart from separate property), any increase in the property’s value, income, and the use of individual funds for the benefit of the marriage. Homemaking, childcare and other unpaid work are considered a non-monetary contribution to the marriage.
Additionally, the court will consider bad behavior. If one spouse had an affair, committed an offense, abused the other partner, or was otherwise at fault, the poor behavior will be held against that party in the court’s assessment of the fair division of property.
On top of this, a judge can also increase one spouse’s share if the other spouse did something to reduce the value of the marital property. For instance, a jilted spouse cannot go on a shopping spree or purposefully damage the family vehicle without having to pay for this loss later on.
Commingled Property in Virginia
What are the provisions under Virginia law when property seems like both marital and separate property? For instance, if one of the partners receives an inheritance during the marriage and deposits it into a joint account from which both parties draw? Or, say, one of the spouses uses funds saved before the marriage to invest in remodeling the family home. This is often called “commingled” property.
The Commonwealth has measures in place for handling commingled property. In most cases, the law enables a court to decide which part of the property is “nonmarital” and “marital.” Then the marital part of the property is divided between the spouses. Both assets and liabilities that may be commingled are divided in this manner.
In some cases, however, the property might become commingled to the point where it is virtually impossible to distinguish which property is marital and which is nonmarital. In these types of cases, the likely ruling would be that all of the property is marital.
Equitable Distribution in Virginia
The state of Virginia uses the equitable distribution system to divide marital assets in a divorce. Note that this only comes into play if a couple is unable to come to an agreement outside of court. When this occurs, the judge decides how assets are divided between the spouses.
Equitable distribution is not necessarily the same as a 50/50 distribution. It means dividing assets in a way that accounts for each party’s earning ability, separate assets, and role in the marriage. Other factors that come into play during this process include the contributions each party made to the marriage and the duration of the marriage.
This applies only to marital assets. Separate assets, those that were brought into the marriage by one party or gifts and inheritance are generally not subject to division.
Disclosing Your Assets
It’s not uncommon for divorcing couples to hide assets from each other. Perhaps they’ve heard horror stories of an individual’s business being given to the other party or a hardworking individual being cleared out financially by the other spouse.
However, hiding assets is one of the worst things you can do during a divorce. Your spouse likely has a general idea of how much you’re worth, and if your reported assets seem suspiciously lacking, you could find yourself the target of a forensic audit. This breaks down effective communication and negotiations during the divorce, as it makes it nearly impossible for the other party to trust you. If your asset disputes cannot be settled during negotiation and they end up in the hands of the court, then the results are unpredictable and you could end up in worse shape.
When hidden assets come to light during divorce hearings, the judge will often make an example of the party who attempted to hide them. At the end of the day, you could end up with far less than you would during fair, open negotiations.
Consult with a Seasoned Virginia Family Law Attorney Today
In a divorce proceeding in Virginia, matters of equitable distribution of property can be complex. This is why it is best to consult a skilled and knowledgeable Virginia family law attorney about your rights.
At the law offices of Buck, Toscano & Tereskerz, we guide our clients through the divorce process to help ensure that they achieve a favorable outcome in their family law matter. If you are facing a divorce or contemplating a divorce, call (434) 977-7977 today to schedule a consultation with an experienced family law attorney.
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