Divorce is often painful, and every aspect of it can bring up intense and sometimes combative emotions. This can lead to extended court battles when it comes to property division. For couples who can work out the division of marital property and reach an agreement on custody and child and/or spousal support, an out-of-court settlement is possible.
Either way, having attorney representation that will advise you of the best course of action, and who have the skills to work on your behalf either in or out of court, will help to ensure that your interests are protected. In Virginia, it is important to understand the laws regarding divorce and property division in order to know what you may be entitled to ask for.
How is property divided?
Virginia is an equitable distribution state, where the court determines a division of property that is fair, although not necessarily equal. Marital property is all that has been acquired during the marriage, including assets as well as debts. Included as well are commingled assets or debts that may include a mortgage, one spouse’s business, income or dividends. Excluded from this are inheritances, separate gifts, and property that was brought into the marriage.
When determining property distribution, a judge will factor in:
- Income and debt of each spouse
- Alimony from a previous marriage
- Length of marriage
- Age and health of each spouse
- Pensions or retirement benefits
- Tax penalty for property division
- Whether each spouse has financial means to support themselves
Can the grounds for divorce affect property division?
As with most states that have adopted consensual grounds for divorce, Virginia does have a “no fault” cause for divorce. In this case, however, the couple must be separated for one year without cohabitation before the “no fault” grounds can be claimed. This period of time can be reduced to six months with a settlement agreement or if there are no minor children.
Virginia has not struck down some more antiquated reasons that a party can claim for divorce, including adultery, sodomy, cruelty, desertion and a felony conviction. While some of the above can be difficult to prove, any claims, especially for adultery or cruelty, can adversely affect the outcome for the accused in a judge’s determination of property division.
