How Can I Recover My Separate Property After a Divorce?
Divorce can have many types of consequences on the people forced to go through it, particularly the strife caused by the division of marital and separate property. Often times, the tumultuous nature of many divorces means individuals are unable to take control of their separate property when the proceedings are finalized.
For whatever reason, some spouses come into possession of their partner’s separate property they owned prior to entering into the marriage. Under Virginia marital laws, separate property is defined as acquired before the marriage, after the marriage, or by inheritance or gift from a third party. Any property acquired during the course of marriage is defined as marital property and is subject to division between the two parties under the court’s discretion.
In previous years, retaking possession of separate property under the control of the other spouse could be an arduous and painstaking process. Parties attempting to reassert their claims to separate property could not simply go and take possession and needed a separate court order from a District or Circuit court in Virginia to do so.
New Virginia Divorce Laws on Marital Property
On July 1 2016, a new Virginia divorce law on marital property took effect streamlining the process and taking some of the headache out of recovering separate property under the other party’s control. Now, parties need only petition the same court hearing the divorce to order the other spouse to turn over the separate property.
Parties who violate the court’s order to turn over separate property in their possession may be subject to discipline by the court. Furthermore, it may be possible to have certain authorities come to retake possession of the property in question, depending on the circumstances of the case.
How is Property Divided in Virginia Divorces?
There are many preconceived notions about how Virginia courts divide marital property in divorce proceedings. This may include the perception that one party may be favored over another by the court for one reason or another.
However, Virginia follows an equitable distribution of property model. This means that courts try their best to ensure each party is compensated equally although this does not mean there will be an equal 50/50 split.
Virginia divorce courts use the following factors to decide how to allocate marital property:
- Contributions, monetary and nonmonetary, of each party to the well-being of the family
- Contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of the marital property of the parties
To reach this goal, courts may require the sale or transfer or real estate or monetary compensation in exchange for retaining full control of the property in question. In these situations, having an experienced Virginia divorce attorney can make a world of difference to the outcomes of property division following a divorce.
Leesburg Divorce Attorneys
If you are facing a divorce, contact our office for a consultation about your case. The experienced Leesburg divorce attorneys of Whitbeck Cisneros McElroy PC serve clients throughout Northern Virginia including Loudoun, Fairfax, and Prince William Counties.