Financial Implications of a Divorce: What are the financial implications of divorce?

Divorce is considered one of the top five most stressful life events.  Divorce turns your entire world upside-down—your family, your living situation, and, yes, your finances as well.  In fact, financial stress is one of the top five causes of divorce.  This means a lot of divorcing couples were already dealing with financial issues before turning to the divorce court for relief.

Virginia Divides Marital Assets Equitably Not Equally

Virginia divides marital assets in a divorce based on what is equitable, not on what is “equal” (50/50). Courts in Virginia evaluate several things in determining asset division when a couple of divorces, including, among other things:

1. The contributions each party made to the well-being of the family and the acquisition of assets;
2. The length of time the couple was married;
3. Age and health of both people;
4. The circumstances contributing to the dissolution of the marriage; and
5. The use of the marital property for nonmarital purposes

Based on these factors, Virginia will decide what each person “deserves” in the dividing of the assets. This means a husband who single-handedly built a successful business enterprise may walk away with more than a wife who spent most of the marriage unemployed going from job to job, for example.

Protecting Your Assets in a Divorce

How can you help your attorney prepare to address the financial issues in your divorce?  Consider assisting your attorney in the following ways?

1. Gather 12-24 months of checking and savings account statements from each of your accounts;
2. Gather 12-24 months of credit card statements from each of your accounts;
3. Gather 12-24 months of retirement and investment account statements from each of your accounts;
4. Locate and provide your past 3 Federal and State Tax returns;
5. Locate and provide any statement reflecting large gifts you received from anyone other than your spouse or large payments you made during the marriage;
6. Locate and provide statements of any debts you have; and
7. Create a family asset sheet listing your family’s assets

Do You Need a Lawyer to help with Property Division?

Some of the things an experienced property division attorney can help you with include:

1. How to legally and fairly handle anything you acquired after your spouse moved out;
2. How to have one spouse’s name removed from the deeds to your cars, house, accounts, etc;
3. How to divide up retirement accounts;

We also highly recommend consulting a financial expert (CPA, financial planner) to further navigate the financial implications of a Virginia divorce.

Protect Yourself with a Fairfax Divorce Lawyer

Lawyers can be expensive, but often not hiring a lawyer can be even more expensive.  Curran Moher Weis helps clients navigate complicated property division cases.   Contact us today to get the insights you need to make the most of your property division case.

WHO GETS THE PETS IN A DIVORCE?

By Carl Schoenherr , Esq.

Most people think about custody as it pertains to children in a divorce, but what happens when a couple has a pet?

Are pets treated the same as children, and does the court care about the best interest of the family pet?  For many people, pets are part of their family, and the issue of who gets the family pet in a divorce can be especially important, challenging, and emotional. Unfortunately, this area of law can be particularly ambiguous when it comes to Virginia law, but I’ll “shed” some light on that in this blog.

According to Virginia law, pets are personal property, and just like any other personal property, they are subject to division by the court in a divorce case under Section 20-107.3 of the Virginia Code.  This section of the code focuses on equitable distribution – the process the courts use to identify and determine the value of assets and liabilities, determine which of those are considered marital vs. separate, and then divide these according to a series of factors (having to do with the marriage, acquisition, and care of the property).

Inherent in this process are a couple of takeaways for those who are concerned about the custody of the family pet.

First, the best way to ensure you get a pet in a divorce is to prove that he/she is your separate property. .  If you can prove the pet was purchased, or adopted, by you prior to the marriage without any funds from the other party, then the presumption would be that you get to keep the pet.  The other party would need to prove that they acquired an interest in the pet over the course of the marriage by significantly increasing the pet’s value through his/her own efforts.  Note that the courts are looking at the value to the general public, not value to an owner, so this increase can be difficult to prove

If the court determines that a pet is a marital property, then the court uses the factors contained in the code to divide the property.  Some examples of things a court may look at include:

1. Contributions, monetary and non-monetary, that a party made to the acquisition, care, and maintenance of the pet;
2. Which party is in the best position to continue to maintain the pet;
3. Any history of abuse or neglect of the pets; and
4. Where any children who have bonded with the pet might be residing pursuant to a custody or visitation order.

Furthermore, the factors include a catch-all, which provides sufficient leeway for additional arguments about where the pet should reside, which could potentially include the “best interests” of the pet.  Tailoring your evidence in a case to support the factors above, such as evidence as to who cared more for the pet, who spent more time with the pet, etc., will increase your chances of a court awarding you the pet in a divorce.   A court may order the pet and any value assigned to you outright, or award you the pet, but order you to pay a portion of its assigned value to the other spouse.

For many parties, the process of using the courts to decide whose “property” the pet is can seem cold and unfair.  This is especially true when the court assigns a dollar value to the pet that can never measure up to the sentimental value you place on him/her.  However, you have an alternative to using the courts.  Because the law considers pets “property,” a court will not set aside any agreement regarding the pet, unless the agreement is unenforceable as a contract.  Once you have an agreement regarding the pet, that agreement can be incorporated into and enforced by the court as part of the final order.

If you need assistance reaching an agreement, be sure you are working with a knowledgeable family law attorney who can counsel you on all of your options, such as mediation or other dispute resolution techniques.  The experienced attorneys at Curran Moher Weis are here to help you through that process and other complex aspects of divorce and property division. Contact us for a consultation here.

Equitable Distribution of Property in Virginia: What is “Hybrid” Property, and How is it Divided?

Do the words “Brandenburg,” “Keeling,” or “reasonable rate of return,” mean anything to you? Probably not — but if you’re going through a divorce, they had better mean something to your attorney! Each is a different method that has been used by Virginia courts to divide hybrid property between spouses.

First of all, what is property?

“Property” is a general term that includes everything of value owned by two married people. It can include real estate, bank, and investment accounts, retirement accounts, pensions, stock options – even “intangible property,” like the right to profit from patents or books written by a party.

Ok, so what is hybrid property?

In a Virginia divorce case, property owned by either party, or both parties together, can be classified by a court in one of three ways: marital, separate, or a combination of the two, known as “hybrid.” Marital property is generally any property acquired during the marriage, by either party individually or by both parties together, regardless of how the property is titled. Separate property is generally any property acquired by a party before the marriage; acquired during the marriage if by gift from a third party, inheritance, or other source outside the marriage; or acquired after separation.
Hybrid property is a combination of marital and separate property. It can occur in many forms, for example:

“What About My Engagement Ring?” Issues of Personal Property Division in Divorce

Engagement rings are a good example of how personal property issues can sometimes become quite complicated in a divorce.

Virginia Engagement Ring Law History

Long, long ago (okay, back in 1941), the Virginia Supreme Court looked at the issue of “who gets the ring” and found that a husband could recover the value of his engagement ring if his soon-to-be wife broke off the parties’ engagement.

“[I]f an intended husband makes a present, after the treaty of marriage had been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she breaks off the marriage, he may recover from her the value of such present…”

This case (Pretlow v. Pretlow) espouses the “conditional gift” theory.  That is, the engagement ring is a gift conditioned on a marriage actually taking place.  If the condition is not met – if the marriage does not occur – the gift is forfeited and the ring must be returned.  Many states, including Maryland, view engagement rings as conditional gifts.