During a divorce, a couple has to divide property, debts, and assets and determine ownership of personal possessions and belongings. In Virginia, the courts divide all property into categories in order to evaluate them during the distribution process. All items from an estate are usually classified as separate, marital, or hybrid, and the courts assess those items based on each spouse’s contribution to or prior ownership of them. Being knowledgeable about Virginia property laws, as well as how courts view the marriage itself in relation to the property, can help you better understand your divorce process.
What Qualifies as Personal Property?
During a marriage, a couple usually acquires personal property together and comingles property they owned before the marriage. Thus, when a couple must divide this property through agreement or court procedures, they must often consider the following as personal property:
- Real estate. This includes residential, commercial, and undeveloped land.
- Automobiles. This includes cars, trucks, boats, motorcycles, and off-roading vehicles.
- Valuable home furnishings. This includes furniture and electronics.
- Valuable pets. This includes show horses or dogs.
- Valuable collections. This includes coins, art, antiques, or wine.
- Gifts given to the couple. This includes special items that were given as gifts to both people in the marriage—perhaps as a wedding or an anniversary present.
Division by Property Settlement Agreement
It’s important to know that couples can attempt first to work with their attorneys to divide debts, assets, and personal property before handing over division control to Virginia courts. To accomplish this, each party:
- Draws up a property settlement agreement (PSA) with the attorney
- Proposes a plan and communicates it through the attorney
- Comes to a compromise or agreement
If the two spouses are unable to come to an agreement or compromise, they can allow the courts to process and classify property using the equitable division system.
How Virginia Courts Categorize Personal Property
Virginia is an “equitable distribution” state, which means a judge will divide property in a way he interprets as fair—but not necessarily what is equal. Thus, property is not always a 50/50 split. In fact, it’s common that two-thirds of the assets will go to the higher wage earner. However, to execute equitable distribution, a judge considers when and how property was acquired. Generally, Virginia courts will classify pieces of property into one of three general categories:
- Separate property is acquired before the marriage or after the last date of separation. If, for example, one spouse owned a car before the start of the marriage and maintained it solely through her separate income throughout the duration of the marriage, the car will likely be ruled separate property. Separate property is not eligible for division by the courts.
- Marital property is mutually acquired by both spouses during the course of the marriage. For example, whether or not the house is titled under one or both names, a house purchased during the marriage and cared for by both spouses will likely be categorized as marital property. Property ruled to be shared can be divided equitably by the court.
- Hybrid property is acquired with both marital and separate funds. For example, if one spouse was sole owner of a vehicle before the marriage, but her spouse contributed to its care and maintenance in monetary or non-monetary ways during the course of the marriage, the court might deem the car hybrid property. Since each spouse has some sort of stake in hybrid property, it is eligible for division.
Deciding Factors in Division of Property
Virginia courts will consider property in these three categories when dividing personal property, but they will also consider other significant factors, including:
- Each party’s monetary and non-monetary contributions to the well-being of the family
- Each party’s monetary and non-monetary contributions to the care and maintenance of the property
- The duration of the marriage
- Under what circumstances the marriage ended
- Under what circumstances and when pieces of property were acquired
- Tax consequences of awarding certain pieces of property to each spouse
Get Help with Your Division of Property
At Kearney, Freeman, Fogarty & Joshi, we understand the confusing and frustrating process of dividing personal property during a divorce. If you have questions, we’re here to offer sound and trusted legal help. To speak with someone regarding your case, call us toll-free at 877-652-1553.