On behalf of Duff & Kronfeld, P.C. posted in blog on Monday, February 12, 2018.
After many years of marriage, you may have finally decided that it is time to divorce. Perhaps your marriage has been slowly deteriorating over time or perhaps you and your spouse have simply fallen out of love. No matter the reason why you have decided to end your relationship, you need to take steps to prepare for your divorce. For example, one of the first things you should do is to learn as much as possible about the marital property laws in Virginia.
Like many other states, Virginia does not follow the principles of community property where spouses are presumptively equal co-owners of property. Instead, the courts follow the principles of equitable distribution, in which they evaluate the fairest allocation of assets and debts, as explained below.
What is marital property?
In general, marital property includes anything that you acquired or earned during the course of your marriage, from the day of your nuptials until the day you separate. For example, if you and your husband purchased a house in Fairfax after your wedding day, then the house is presumptively marital property. However, if one of you contributed pre-marital money or money gifted to you in acquiring that house, then that spouse may have a part separate interest in it.
What is separate property?
Not all of the property you own might be marital property in the eyes of the court. Some of your property may be separate and therefore not subject to division as part of your divorce settlement. Typically, anything that you purchased prior to your marriage is separate property. In addition, anything that you acquired as a gift or inheritance is usually also separate and will remain in your possession when you divorce, as well as anything that you purchased with your gift or inheritance.
How does the court divide marital property?
A Virginia court will usually decide whether a piece of property is separate or marital. Since Virginia is an equitable distribution state, the court will make every attempt to divide the marital property in a way that is fair to both parties. Keep in mind that fair does not always mean equal. It is possible that you may end up with a larger piece of the pie or vice versa. In order to make its decision, the court will consider many factors, which are specifically identified in the law. For example, the judge must consider your respective positive and negative monetary and non-monetary contributions to the marriage, the length of your marriage, your ages and health, and even the tax consequence of the division.
If you are considering divorce, it is important to understand how Virginia divides marital property. This will help you prepare for the divorce process so that you can fight for the settlement you deserve.