Division of Property in a Virginia Divorce Case
How do divorcing parties determine who keeps the house or who pays the family´s debt? In a divorce, all respective assets and debts are identified, valued, and allocated between the parties.
Equitable Distribution in Virginia Divorces
To determine what property is subject to distribution, the court must classify what property is separate and what property is marital.
Generally, spouses maintain their separate property as their sole and separate assets. Marital property is generally subject to division between spouses. Hybrid property, which is part-marital and part-separate property, can be divided between spouses after applying certain court-approved methods for valuing and distributing this type of property.
Property subjects to equitable distribution can include:
- Family home
- Retirement accounts
- Vehicles airplanes, and boats
- Furniture and other household items
- Bank accounts, investment accounts, stocks, and bonds
- Business
Equitable Distribution Doesn´t Mean “Equal”
In Virginia, property division is known as “equitable distribution.” When making an equitable distribution determination, the court and attorneys must consider the factors set forth in Virginia Code Section 20-107.3.
- In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party. In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort. “Personal effort” of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party.
- In the case of any pension, profit-sharing, or deferred compensation plan or retirement benefit, the marital share as defined in subsection G shall be marital property.
- In the case of any personal injury or workers’ compensation recovery of either party, the marital share as defined in subsection H shall be marital property.
- When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.
- When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.
- When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.
- When the separate property of one party is commingled into the separate property of the other party, or the separate property of each party is commingled into newly acquired property, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, each party shall be reimbursed the value of the contributed property in any award made pursuant to this section.
- Subdivisions 3 d, e and f shall apply to jointly owned property. No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership. For purposes of this subdivision 3, property is jointly owned when it is titled in the name of both parties, whether as joint tenants, tenants by the entireties, or otherwise.
Because the division of property is a significant issue in almost all divorce cases, it´s particularly beneficial to have an experienced divorce attorney at your side. Our firm has a unique understanding of Virginia´s equitable distribution laws and we will utilize our knowledge, skills, and experience to counsel you to a favorable outcome. Contact us to schedule your consultation today.
