On behalf of Duff & Kronfeld, P.C. posted in Family Law on Thursday, November 10, 2016.
If a couple decides to dissolve their marriage, one of the greatest issues they will have to resolve is the issue of property division. The outcome of this process can be determined by many different factors and it is advantageous to have an understanding of the process before you get involved in it. Before a couple can begin dividing their property, they must first recognize what types of property they have and its relative value. The state of Virginia acknowledges two primary types of property; marital property and separate property.
Separate property is generally understood to be property that was acquired before the couple was married. While this certainly includes assets that one spouse owned prior to the marriage, it also includes some things that were acquired during the course of the marriage. The important factor here is not so much what the property is, but rather how it was acquired.
If a spouse acquired property via bequest, inheritance, survivorship, or gift from a person who was not their spouse, it is considered separate property. If it was acquired by means of the sale of separate property it is also considered separate as long as it stayed separate within the marriage. There is also the possibility that some separate property gained value while the couple was married. In such a case, the added value is also considered separate property.
Marital property is, essentially, anything that is not found to be separate property. If the assets were acquired by both parties, are owned in the name of both parties, or were acquired by one party and not specified to be separate property, it is generally recognized to be marital property. This includes retirement funds of any kind acquired during the marriage, prior to the separation. Once the marriage is dissolved, any asset that is not proven to be separate is considered marital and will be divided as equitably as possible.
Some property can be considered to be both separate and marital if the acquirement or added value of the property came directly as a result of the efforts of either party. Commingle separate property with marital property will also transform the asset to marital property. A similar concept of separation is also applied to debt, so a couple may acquire both property and debt as a result of the division of their property. The main goal in the division of property is the make the result as equitable as possible for all parties.
While this is by no means an exhaustive explanation of property division in divorce proceedings, it is enough to establish the primary concepts. However, property division is an intricate and complex aspect of law and is best left to legal professionals who are familiar with the process and who are willing to assist you as you move throughout it. If you find yourself in a situation where you are confronted with the possibility of property division, the assistance of a skilled legal professional will be very helpful.