For many couples, divorce becomes real when it’s time to divide property. It’s one thing to imagine your life free of the spouse who makes you unhappy, and it’s another thing to physically divide a household in two. While you and your ex might agree on some things, there will also be disagreements that will have to be settled by the court. The court will make these decisions after determining which property was acquired during the marriage and which each partner brought to the marriage. After that, the court follows equitable distribution laws. While the laws attempt to make the division of property as fair as possible, it’s important that you have a lawyer representing your interests.
What Is Equitable Distribution?
Virginia follows the laws of equitable distribution. Unlike community property states where all property acquired during the marriage is combined and then divided equally between the spouses, equitable distribution states do not necessarily divide marital property 50/50. Instead, each spouse’s entire financial situation is taken into consideration before the judge determines who gets what. Factors to be examined include:
- Basic facts. Factors such as the length of the marriage, the age of each spouse, and the healthcare needs of each spouse will be considered.
- Contributions to the marriage. This includes both monetary contributions such as salary and acquisition of property and non-monetary contributions including childcare and caring for the home.
- Debts & liabilities. A spouse’s individual debt or separate liability will be factored in to determine an equitable division of property. Also, if one spouse’s actions reduced the value of the marital property, they will receive a lesser share.
- Bad behavior of a spouse. If abuse, abandonment, criminal activity, or an affair played a role in the divorce, the court will likely penalize the guilty spouse when dividing property.
- Tax consequences. If one spouse’s tax burden immediately depreciates their share, the court may adjust the division to account for that.
It is not an easy task for a judge to determine an equitable division of property, so the court relies heavily on each spouse’s requests and reasons for their requests. This is why it’s so important to have legal representation when discussing the division of property.
Marital Property vs. Separate Property
An import distinction when dividing property in a divorce is whether the property was acquired during the marriage or not. Although Virginia is not a community property state—where all property is pooled and divided in a divorce—it does consider any money earned, property acquired, and real estate purchased during the marriage to be subject to equitable division. Money and property acquired by an individual before the marriage is considered separate property and is not divided in a divorce. Money or property given as a gift or inheritance to one spouse during the marriage is also considered separate property. However, the court might consider property that was shared with the spouse or that was used for the benefit of the marriage as marital property, even if it started out as separate property.
Typically, marital property such as the following is divided in a divorce:
- Real estate, including the family home and vacation home
- Personal property such as furniture, household goods, jewelry, vehicles, and electronics
- Income, savings, investments, and retirement benefits
An argument can be made for a specific piece of property during divorce negotiations, but if an agreement cannot be reached about valuable property, the court might order that it be sold and the proceeds divided equitably. Your attorney can make sure your requests are known and considered by the court.
James E. Short, PLC Is Here for You
The sooner you consult a Virginia family law attorney in your divorce journey, the more likely it is that you will be in a good position to get what you want out of the divorce. Whether you are concerned about keeping separate property separate or you believe you deserve a larger share of the property because of your spouse’s actions, our Chesapeake office can help. We will help you avoid common mistakes and take the next steps towards freedom from an unhappy marriage.