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Virginia family law and dividing property in a divorce

On Behalf of | Aug 5, 2021 | Divorce |

A Virginia divorce comes with inevitable complications in every aspect of the case. While child custody, child support and spousal support will inevitably rise to the top on the list of concerns, property division will also weigh heavily in the future. This is especially true for a couple that has achieved relative affluence. Even if they appear to be financially secure, a divorce can upend that security and cause a litany of challenges whether both spouses work or if one is the wage-earner and the other a stay-at-home parent and spouse. Knowing how the law addresses property is vital.

Understanding separate and marital property in Virginia

Property can be categorized as separate and marital. Separate means it belongs to one party. Marital means it belongs to both. Property can also be commingled meaning it is partially marital and partially separate. A property is separate if it was acquired by a person prior to the marriage; if it was given to the person during the marriage as a gift, by descent or through other means not linked to the spouse; or if it was accrued based on the proceeds of a sale of separate property. Once a property is declared separate, it will not be split in the divorce.

Marital property is any property that is in the names of both spouses and was acquired during the marriage. It is not specifically classified as separate. If one person has a retirement account, a pension, profit-sharing that they garnered while the couple was married and prior to them separating, it will be viewed as marital property unless there is evidence to the contrary.

It is also possible for property to be considered part-marital and part-separate. For example, if one spouse owned a business before the couple got married and, during the marriage, it increased in value, it could be shared despite it being initially separate. The efforts of the parties will be gauged to determine their role. Then part of the property might need to be shared or the value of it must be split. The non-owner will need to prove that he or she was integral to the value increase through personal effort such as providing labor, ingenuity, creativity, promotion or management.

Dividing property can be complex and experienced guidance can navigate the terrain

Under family law, Virginia uses equitable distribution to determine how to fairly divide property. People should be cognizant of what that means. It is frequently misinterpreted to mean that the property will be divided equally. In truth, it means that the court tries to find a way to divide the property in a way it deems as fair. That does not automatically mean equal and the determination of whether a property is separate or marital plays a critical role in the outcome.

People who have achieved a certain level of wealth are likely to own various properties like real estate, vacation homes, automobiles, collectibles, jewelry and more. Many times, they achieved their status through a personal business. These can all be up for dispute when dividing property in a divorce.

Not all cases are contentious and some might have room for negotiation. If the sides are relatively amicable, there could be a settlement. In others where people cannot get on the same page, it may be necessary to go to court. Regardless, for these challenging issues, it is wise to have professional guidance. This can assess the property and help with being prepared from the start of the case.