Dividing Property In A Virginia Divorce

dividing propertyDividing property in a divorce can be complex and difficult, both practically and emotionally. If you and your partner cannot work out an agreement together or with the help of your attorneys, the court will divide the property for you.

Virginia follows an “equitable distribution of property” scheme. This does not mean an equal division. Rather, the equitable distribution system of property division aims to divide a divorcing couple’s property fairly. In order to do that, a court must first categorize the couple’s property as separate or marital.

Separate Property

Separate property is not divided amongst you and your ex-spouse, it is entirely yours – with few exceptions. Virginia law defines separate property as: (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate.

Basically, if you owned it before your marriage, maintained it as your own and/or received it as a gift from someone other than your spouse, it’s your own separate property.

Marital Property

On the other hand, marital property will be divided by the court. Virginia law defines marital property as: (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise [except the portion of the property which could be distinguished as separate], (ii) that part of any property classified as marital [because of the efforts of a spouse to increase the value of separately-titled property], or (iii) all other property acquired by each party during the marriage which is not separate property as defined above.

If the property was acquired during the marriage, or titled in both you and your ex-spouse’s names, it is presumed to be marital property.

Dividing Marital Property

Before actually dividing you and your ex-spouse’s marital property, the court will value the assets. For items that are not liquid cash, the court will use the fair market value of the property. For special property, like a rare coin collection or real property with special improvements, you and your ex may need to hire a professional appraiser to appropriately value the property.

Once the value of the marital property has been calculated, the court will then divide it amongst you and your ex. Remember, this division is not always an even split. Rather, courts consider many statutory factors when distributing your marital property. These factors include:

  1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  3. The duration of the marriage;
  4. The ages and physical and mental condition of the parties;
  5. The circumstances and factors which contributed to the dissolution of the marriage;
  6. How and when specific items of such marital property were acquired;
  7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  8. The liquid or non-liquid character of all marital property;
  9. The tax consequences to each party;
  10. The use or expenditure of marital property by either of the parties for a non-marital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
  11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Additionally, the court will take into account behavior on the part of you or your ex-spouse during the marriage which may have contributed to the end of the marriage. If you or your ex had an affair, committed a crime, or abused the other, this behavior will likely count against you in the court’s determination of how property should be divided. Also, the court can increase your share of the property division if your ex did something to depreciate the value of marital property.

It is also important to note that alimony or spousal support will be decided separately from the court’s determination on how to divide marital property. However, the marital property will be divided up first so that the court has a better idea on your need for alimony and your ex-spouse’s ability to pay for it.

There are a number of considerations to be aware of when dividing and allocating property during a divorce. If you are currently going through a dissolution of marriage action or are considering divorce, the family law attorneys at DiPietro Family Law Group are here for you. Call us today at (703) 370 – 5555 for a consultation.

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