Understanding Property Division In Virginia

If you are married, but are planning to separate or divorce from your spouse, you and your spouse will need to strike an agreement regarding the division of your property and assets. Without a prenuptial or postnuptial agreement that dictates how property is to be split, this can be one of the most contentious issues in divorce.

When you contact Nan M. Joseph, she will help you understand Virginia's laws regarding division of property during the dissolution of marriage, as well as your options for reaching an agreement. She has been serving clients in Virginia for decades and is highly skilled in cases involving division of property.

Your Right To Divide Property As You And Your Spouse Agree

One of the more positive parts of going through a divorce is that you don't have to go to court and litigate your divorce. In fact, you and your spouse have the right to divide property as you both see fit, so long as you agree, and the court finds the agreement to be reasonable. While reaching a property division agreement may seem very doable for couples who are separating on amicable terms, couples who are harboring feelings of distrust, hurt and anger may have a more difficult time reaching a property division agreement. When you hire Nan M. Joseph, she can help you understand the benefits of out-of-court negotiation. She can instruct you on how to communicate with your spouse, how to help both parties make reasonable compromises and how to fight for what really matters.

What Happens If You Cannot Reach An Agreement Out Of Court?

If you and your spouse cannot agree about how to split your property and divide your assets out of court, your case must go to court. Once your case goes to court, a judge will be responsible for dividing your property as they see fit within the parameters of the law.

In Virginia, property in which both husband and wife have a legal interest (not necessarily "title" interest) — termed marital property — must be divided in a manner that is equitable. Equitable does not necessarily mean equal, as will be discussed in more detail below.

Marital Property, Separate Property And Equitable Distribution

As set forth in the Virginia Code, marital property is all property that is jointly owned by spouses or is any other property acquired by a party during the marriage even if it is titled in a person's sole name. It specifically includes that portion on pensions, deferred compensation and retirement plans of any kind that a person acquires from date of marriage to date of (last) separation. Property can have a separate portion and a marital portion — called hybrid property. This can happen when marital and separate property are combined. Sometimes this occurs when they are combined into one account, or separate and marital money are combined into newly acquired property such as the purchase of a home. If this occurs, it can create complex tracing issues and competing mathematical calculations to determine what portion of an asset is separate and what portion is marital. These issues often result in complex negotiations and may require hiring experts. Property is marital if it was acquired during the marriage, no matter which spouse acquired it (i.e., if a husband buys a car with his earned income, the car is marital property because it is acquired during the marriage and therefore is subject to the laws of equitable distribution).

Separate property, on the other hand, is property acquired before the date of marriage or acquired by means of gift to a party (from a source other than his/her husband or wife) or it has been inherited by a party. For example, if the car that the husband acquired was gifted to him by a parent or inherited, then the vehicle is separate property and cannot be sought by the wife during a divorce.

Property that is marital must be divided in a way that is equitable, not necessarily in a way that is equal — parties do not have to split assets 50/50. To determine what is equitable, the court will weigh several factors, including:

  • Contributions monetary and nonmonetary to the care, acquisition and maintenance of property
  • Contributions monetary and nonmonetary made by each party to the well-being of the marriage and to the family
  • How long the parties have been married
  • Grounds for divorce, including fault grounds and/or reasons why the marriage broke down
  • The physical conditions and ages of both parties
  • Any existing debts, marital or separate
  • Potential tax consequences of dividing marital property
  • Any other factor the court deems relevant

Keep in mind that because the court may also consider "the circumstances and factors which contributed to the dissolution of marriage, specifically including certain grounds for divorce," this means that if you or your spouse was abusive or adulterous or deserted the other, among other things, this could affect a property division settlement.

How To Divide Property

You and your spouse or the court may determine that property is to be divided in any number of ways. For example, you may be ordered to sell a house and split the funds, to buy out your share of the house from your spouse, or to keep (or give up) the house in exchange for something else, like a retirement fund. Again, making these decisions on your own outside of the courtroom is in your best interests, as it puts the power in the hands of you and your spouse. Nan M. Joseph is a skilled negotiator. She has also represented clients during mediation. She knows how to help you get what you want. She works with your financial health in mind.

Obtaining A Fair Property Division Judgment In Divorce

If you are seeking divorce, how your property and assets will be split is no doubt of great importance to you. Rather than leaving a property division settlement to the unknown and uncertain discretion of a judge, it is important to understand your rights, your financial picture, the finances of your spouse and how to negotiate a property division deal. If a settlement cannot be negotiated and your case must go to court, it is critical that you know how to present evidence to the judge and advocate for the property division arrangement that you desire.

How An Experienced Virginia Property Division Lawyer Can Help

Nan M. Joseph, an experienced Virginia family law attorney, can help you. She has more than 40 years of experience representing clients going through divorce and has been nationally recognized for her superior legal skills. For legal help you can count on, contact her law office in Leesburg today at 703-777-7740 or send an email. She cares about achieving the best outcome for you and will work hard to exceed your expectations.