In 2014, the Centers for Disease Control and Prevention (CDC) reported 813,862 divorces and annulments in the U.S. During most divorces, the couple must divide the assets acquired during the marriage, including real estate. Because spouses acquire assets both jointly and separately while married, Virginia courts evaluate divorce division of real estateproperty division using a system known as “equitable distribution” to divide the assets fairly between the two parties.

Under Virginia law, marital property is defined as:

  • Jointly titled property
  • Any property acquired by either party during the marriage and up through the separation

For example, homes, businesses, lots, or other pieces of real estate purchased under both names or any other property acquired after the marriage is considered marital or joint property. It’s important to note that Virginia courts are not required to split real estate 50/50 between both parties. Instead, Virginia divides assets equitably and fairly, depending on who acquired the assets and how much each spouse contributed.

What Is Separate Property?

In addition to marital property, each person within the marriage may also have separate property owned individually. Real estate that could be considered separate is defined as:

  • Property acquired by one party before the marriage
  • Property acquired during the separation period
  • Property inherited by one person from a third party
  • Property given to one person as a gift

In this case, any real estate one spouse purchased before entering into the marriage remains the property of that person. Likewise, any property passed down to one spouse as inheritance or as a gift remains under her ownership.

It’s also possible to have what Virginia recognizes as hybrid property—pieces of real estate originally acquired separately but then actively improved by both parties for financial gain. The court uses specific formulas to determine the percentage interest of each spouse in a hybrid property.

How Virginia Courts Divide Assets and Debts

Virginia divorce courts are not required to divide assets or debts in half between spouses. Instead, the court takes a close look at a few important factors to determine how real estate is divided. To divide property fairly, the judge determines:

  • Who originally acquired the real estate.  Property acquired by one spouse before the marriage began is considered separate property. However, if during the marriage, the original owner hands over real estate maintenance duties or financial responsibility to his spouse, that spouse gains a stake in that property. The courts often take original ownership into consideration during the divorce proceedings.
  • How much each spouse contributed. Even if one spouse acquired property separately before the marriage, it can become joint or marital property if the other spouse contributes financially by paying for the maintenance or improvement of the property or if the spouse cares for and maintains the property through work.

Dividing Real Estate

After the judge decides if real estate is marital or separate property and considers how each spouse contributed to the property, she may order that the property be:

  • Sold. If the judge rules that each party had an equal hand in the property’s current value, she may order the proceeds be split between each spouse according to how each contributed to its worth.
  • Transferred.  If the judge decides that a piece of real estate was maintained and improved primarily by one spouse, she may order that ownership be transferred to the responsible party.

Our Divorce Attorneys Are Here to Help

Our legal team has years of experience helping clients through division of assets and the divorce process, and we know how confusing and frustrating real estate division can become. If you’re going through a divorce and have questions about marital and separate property, maintenance and improvement, or hybrid property, contact Kearney, Freeman, Fogarty & Joshi at 703-691-8333 to discuss your specific situation. Our office is located in Fairfax, VA, and we proudly serve the entire Northern Virginia, Washington, D.C., and Maryland region.