Virginia is an equitable distribution state. This means that courts will look to divide marital property based upon statutory factors to determine what is fair given a couple's unique circumstances. Many people associate "equitable" with "equal." Although marital property is often divided right down the middle with a 50-50 share going to each spouse, there are many cases in which, after application of the factors to a family's circumstances, the division is not equal.
The attorneys at Kearney, Freeman, Fogarty & Joshi, PLLC, will be happy to answer any initial questions you might have about Virginia's property division laws. Please schedule an initial consultation today by calling toll free at 877-652-1553 or by contacting our Fairfax, Virginia, law office online.
What Property Is Subject to Equitable Division?
This is a common question. Many of our clients have property holding sentimental value or particular item of property that they would like to retain following a divorce. Virginia classifies property into "separate property", "marital property" and part separate part marital property". Separate property is not subject to division by the court, while marital property will be subjected to negotiations or division.
So what exactly is separate property and marital property? They include:
- Separate property: Separate property is (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.
- Marital property: (i) all property titled in the names of both parties, (ii) that part of any property classified as marital, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above. All property including pensions and retirement plans, acquired by either spouse during the marriage, and before the last separation of the parties, is presumed to be marital property. Marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.
*Note: Many couples address property division issues in prenuptial agreements before marriage. Courts will honor these agreements unless they are found to be invalid. Our firm will be happy to review your prenuptial agreement as we guide you through the divorce process.
Factors That Influence Property Division
Courts do not award spouses property arbitrarily. Rather, they look at each situation on a case-by-case basis to determine what is fair and equitable applying the statutory factors. Examples of factors a court shall consider include but are not limited to:
- Monetary and nonmonetary contributions made by both spouses during the marriage
- The duration of the marriage
- Each parties' mental and physical health
- The factors and circumstances leading to the dissolution of the marriage including any grounds for divorce
- Waste or dissipation of marital property by a party
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award
Contact a Virginia Property Division Lawyer
We invite you to schedule a consultation to discuss your divorce and property division concerns. You may call our Fairfax attorneys toll free at 877-652-1553 or you may contact our firm online.