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Understanding Virginia Divorce Property Division Laws

Approximately 45% of first marriages end in divorce, which involves making decisions and agreements about the distribution of assets and property. To ensure a fair division of the property acquired during the marriage, states have enacted property division laws that generally follow one of two practices: the community property method or the equitable division method. In simplest terms, the community property method enforces a 50/50 division of the property acquired during the marriage whereas the equitable division method allows courts to analyze each couple's financial situation and various other factors (such as the contributions each party made to the marriage and the acquisition of the assets) and divide the marital property in a method that the court deems fair to both parties.

What Method Does Virginia Apply When Dividing Marital Property?

Like more than 40 other states, Virginia divides marital property in a divorce action based upon equitable distribution. However, this does not mean that only a judge has the final say over this aspect of divorce proceedings. Parties can negotiate a settlement using various means, such as a collaborative law approach or mediation, to resolve the property division issues arising from their divorce and thereby retain control of this process with the help of their divorce lawyers. If the parties cannot agree on a fair asset division that is acceptable to both, the court will decide how to divide and distribute the marital property. A judge will weigh the factors set forth in Virginia Code Section 20-107.3 including but not limited to the length of the marriage, the contributions to the marriage made by each party, both monetary and non-monetary as well as any negative contributions to the marriage, the factors and circumstances leading to the separation and tax consequences based on the evidence presented before deciding how to divide the marital property. If you intend to litigate your divorce in court, a Virginia family law attorney is best suited to help you understand the equitable division method applied in Virginia divorce cases, the process adhered to by a judge in determining how to divide the marital property, how best to gather and present the evidence and the possible outcomes in your particular case.

The Distinction Between Separate and Marital Property

You may be wondering what assets are eligible to be divided in a divorce. Property and assets that either of the spouses acquired before the marriage, if kept separate and not commingled with marital assets to the point where such assets cannot be traced, are considered separate property, and are not subject to division in Virginia. Separate property also includes gifts, cash and otherwise, and inheritance that either spouse received before or during the marriage from a third party provided such gifts and inheritance were not commingled to the point that the separate portion cannot be traced. For instance, one spouse may receive a cash gift from a friend and if he/she maintains it in a separate bank account, and can prove that it remained separate without being co-mingled, then such asset should be deemed that party’s separate property. Any assets acquired solely with separate assets should also be considered separate property.

There are many scenarios that can arise as each divorce matter has unique facts. For example, one spouse may have started a business prior to the marriage, but both parties may work in the business and/or marital money is invested to grow the business which may render such business part-separate property and part-marital property. Another example occurs when one spouse either purchases a home prior to the parties’ marriage in which the parties then reside together and use marital funds and earnings to pay the mortgage and/or when a spouse uses separate funds to make all or a portion of the down payment when purchasing the home. Virginia permits a party to trace through a separate portion of an otherwise marital asset or a marital portion of an otherwise separate asset, which can lead to the need to carefully assemble and present evidence. A divorce attorney will help you understand the different classifications of the property that distinguishes marital property, separate property and part-marital and part-separate property. Each party should hire a divorce lawyer in Virginia who understands the state's intricate property division laws and how best to gather and present evidence.

What Factors Do Virginia Courts Consider When Dividing Marital Property?

After a judge has determined the value of the marital estate and classified each asset as separate, marital or part-marital, part-separate, he or she then considers how to divide the property determined to be marital based upon a consideration of factors set forth in Virginia Code Section 20-107.3:

  • Duration of the marriage
  • Monetary and non-monetary contributions of each spouse
  • Debts and liabilities of each spouse
  • Tax consequences of the property distribution
  • The ages and physical and mental condition of the parties
  • The liquid and non-liquid nature of the property to be divided
  • Economic misconduct (such as dissipation or waste of marital funds in anticipation of the separation)
  • Circumstances and factors that lead to the dissolution of the marriage

This is by no means an exhaustive list, and the courts are not only limited to the above factors as there is also a general catch-all factor so that the judge may weigh other factors that he/she deems necessary to consider before issuing a property division order.

Family law attorneys in Virginia can help you understand all aspects of what is involved in marital property division during a divorce proceeding. A divorce lawyer in Virginia will also consider other factors such as a prenuptial agreement that can influence the property division outcome in your case and help you analyze what arguments you may have to claim any separate property. In states such as Virginia that apply the equitable distribution method for dividing property in a divorce, an experienced Virginia divorce lawyer can help you present the evidence needed to ensure a judge has all of the information necessary to make a fair and informed ruling and/or to help you negotiate a fair settlement and distribution of the marital property. Contact Hite Kaminsky Family Law today for more information about Virginia property division laws and how our team of divorce lawyers can assist you with your case.