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Who Gets What in a Virginia Divorce Proceeding?

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The most recent data provided by the Centers for Disease Control and Prevention (CDC) shows that just over 800,000 people seek divorces every year throughout the nation. Virginia’s Department of Health provides that in recent years, approximately 30,000 people have divorced in the state each year. We have previously discussed the benefits of entering into a premarital agreement, which ultimately saves a lot of headache in the courtroom. Unfortunately, hindsight is 20/20 and not everyone has a premarital agreement in place.

While a premarital agreement allows a married couple to determine the manner in which they’d like to separate their assets in the unfortunate event of divorce, what happens to your property if you divorce without a premarital agreement?

Marital Property Versus Separate Property

For the purposes of classifying property in the context of a marriage, there is separate property and there is marital property. Generally, separate property includes property owned before a marriage or gifts received by one spouse from another party. Marital property often includes assets like income earned during the marriage or a house a husband and wife purchased during the marriage.

The way marital property is divided in the event of divorce will vary from state to state. Some states follow the common law rule providing that marital property bought or acquired during the course of the marriage by one spouse will go to that spouse unless there is an agreement otherwise. On the other hand, a small number of states follow the community property rule. Under this rule, generally marital property acquired during the course of the marriage is shared equally.

Virginia Law of Equitable Distribution

Virginia law varies slightly from the two hard line descriptions above due to its equitable distribution statute. Under this statute, the court will determine what is separate property, what is marital property and what might be a combination of both. While the law outlines what is definitely considered marital property and separate property, sometimes property is a hybrid of the two due to commingling of assets.

Where the court finds that the property falls into this hybrid category, they will apply a series of tests to determine the most equitable way to divide the property. If one spouse claims certain commingled property is owed to them, then they must prove that contributions of marital property or personal effort were made thus increasing the value of the separate property. Personal effort is described as:

  • Labor;
  • Effort;
  • Inventiveness;
  • Physical or intellectual skill;
  • Creativity; or
  • Managerial or marketing skill.

In addition to the classification of property type, the court will also make a determination as to what date ranges are applicable for calculating property value increases or decreases. The process is relatively complex.

Virginia Leesburg and Loudoun County Divorce Attorneys are here to Help

Divorces are stressful and can be emotionally and financially taxing. During a time of vulnerability, you need a competent divorce attorney to act as your advocate in both communicating with your spouse and his or her attorney as well as the court. The Virginia attorneys at Whitbeck Cisneros McElroy PC are experienced in all matters of divorce and are here to help you navigate this difficult process.

Resources:

cdc.gov/nchs/nvss/marriage_divorce_tables.htm

vdh.virginia.gov/HealthStats/documents/2010/pdfs/DivTrend.pdf

Contact

Whitbeck Cisneros McElroy PC

106 Harrison Street SE
Suite 300
Leesburg, Virginia 20175

703.997.4982 Tel
703.777.9079 Fax

Whitbeck Cisneros McElroy PC is located in Leesburg, VA and serves clients in and around Ashburn, Paeonian Springs, Hamilton, Sterling, Lincoln, Waterford, Leesburg, Purcellville, Lovettsville, Middleburg, Philomont, Round Hill, Arcola, Aldie, Dulles, Bluemont, Herndon, Haymarket, Reston, Great Falls, Clarke County, Fairfax County, Fairfax City County, Fauquier County, Loudoun County, Prince William County, Frederick County, Warren County, Winchester County, Arlington County.

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