When a married couple decides to divorce, the division of marital property must take place. Virginia is an equitable distribution state when it comes to the division of marital property. In Virginia, courts will attempt to fairly divide property all marital property. The division of marital property is not always even. Instead, Virginia courts consider several factors when deciding the fairest and most equitable way to divide up the marital property in a divorce.
Our Division of Marital Property Lawyers Can Help
If you’re going through a divorce, speaking with a skilled Virginia divorce lawyer is essential. The division of property between you and your soon-to-be ex-spouse is incredibly essential. The amount of property that you walk away owning after your divorce will determine your standard of living going forward. At Surovell Isaacs & Levy PLC, we can help you ensure that the division of property in your divorce is advantageous. We’ll make sure your property division settlement classifies each asset correctly and lists the asset’s fair market value. Contact our Virginia family law firm today to schedule your initial consultation.
The division of marital property is often one of the most challenging parts of going through a Virginia divorce. Virginia couples who are divorcing have the option to sign an agreement regarding their division of property voluntarily. In rare cases, couples negotiate the details of their property division in a binding legal agreement called a property division settlement. The property settlement typically becomes part of the final divorce order. While voluntarily agreeing on a means of property division is possible, many divorcing couples are not able to agree.
Division of Property Laws in Virginia
When the divorcing parties do not agree to property and debt division, the family court judge presiding over the divorce will make the decision. Family court judges apply Virginia’s law regarding property division. Virginia’s property division law is one of the most complicated property division laws. Indeed, the property division statute is extensive and quite complicated. Applying this law becomes even more complicated when a divorcing couple owns substantial assets or when the assets are difficult to characterize.
What are the rules for equitable distribution of marital assets after a Virginia divorce? First, the court will determine which property is separate property and which is marital property. All property that is separately owned by one spouse will belong to that spouse after the divorce. Next, the court will consider how to divide up the marital property between the two spouses. Courts use a factor test to decide which spouse will get to keep the marital property.
Determining Whether Property is Separate or Marital
The first step in the division of property is to make an inventory of the couple’s assets. The court must initially determine the following:
- Who owns the title to the property
- The fair market value of all property
- Whether the property is separate, marital, or part separate and part marital
- A list of all of the debt, but separately owned and jointly owned
In a Virginia divorce, property classified as the separate property will go to the spouse who owns the property after the divorce. Judges will divide up the marital property between the spouses based on principles of fairness. Marital property includes the following:
- Property acquired by either spouse during the marriage
- Property for which both spouses’ names are on the title
According to the Virginia property division statute, separate property includes the following:
- Property owned by either spouse before the marriage of the couple
- Property gifted by a third party as a gift or inheritance to one spouse during the marriage
- Income generated by separate property
- An increase in the value of one spouse’s separate property
When one spouse makes a significant, personal effort to increase the value of any separate property, the property may be marital property. For the property to be considered marital property, the actions of either spouse must have caused substantial appreciation of the separate property. Similarly, when either spouse generates an income from the separate property by using significant personal effort, the income will be considered marital property.
Some types of property are challenging to categorize and become categorized as mixed in nature, such as the following:
- Retirement benefits
- Deferred compensation plans
- Personal injury awards
- Workers’ compensation
When the title of the asset changes from single to jointly owned, the asset is likely a mixed asset. Additionally, when the property is a mix of separate and marital property, the court may classify it as mixed property.
Division Factors in Virginia
In Virginia, family court judges divide property and debt based on principles of fairness using equitable distribution. When determining how to split up the marital property, a judge will consider several factors laid out in the governing law:
- The length of the marriage
- The age and health of each spouse
- Any contributions to the family’s well-being made by one or both spouses
- Any contributions made to obtaining and maintaining the property
- The reason for the divorce, such as adultery, felony convictions, cruelty, etc.
- Tax ramifications regarding the division of property
- Any money spent by one spouse in anticipation of getting divorced
Keep in mind that judges will look to a premarital agreement when determining property division during the divorce. Ultimately, Virginia judges have the ultimate authority over property division in a divorce. Based on an examination of the relevant factors, the judge will decide how to divide up the property. Virginia judges have the authority to transfer money and assets from one spouse to the other when doing so makes the division of property fair and equitable.
Why Hiring Skilled Legal Counsel is Necessary for Virginia Property Division
Determining which spouse owns which property after the divorce is often extremely challenging. The categorization of property as marital or separate plays is vitally important. If a judge categorizes an investment account as your spouse’s separate property, you will ultimately lose any ownership in that asset, and it will belong entirely to your soon-to-be ex-spouse. Similarly, if a judge assigns an incorrect value to an asset, the property division will become skewed.
At Surovell Isaacs & Levy PLC, we enjoy an extensive network of expert accountants and experts in property valuation. We conduct a thorough investigation into our client’s assets and, with the help of experts, fight hard to make sure that courts value and divide up property accurately. If you’re going through a divorce in Virginia, our lawyers can fight for your rights during the property division process. Contact our Virginia law firm today to schedule your initial consultation.