Dividing property and apportioning debts can be a very significant aspect of a divorce. Virginia follows the concept of equitable distribution, which views marriage as a partnership and requires the analysis of certain factors to determine how to fairly distribute assets and liabilities between spouses. Before property is distributed according to these factors, Virginia law requires a court to first identify the nature, ownership, and value of all assets and debts of the marriage.
Under Virginia Code Section 20-107.3, marital property is characterized as tangible and intangible items that are acquired on or after the date of marriage up until the date the spouses separate from one another. Marital property may also include property, or a portion of property, owned by one spouse prior to the date of marriage if very specific circumstances exist, such as the retitling of premarital property into the joint names of parties during the marriage.
Separate property is property that belonged to one spouse prior to the marriage and property acquired by either spouse after the separation date. Separate property is also property that was given to only one party during the marriage, such as a gift from a third party or an inheritance. Importantly, a Virginia court cannot divide or apportion a spouse’s separate property.
Hybrid property is property that is part marital and part separate. Establishing hybrid property often involves a spouse attempting to unravel separate and marital property that has been mixed together or “commingled.” Proving hybrid property is complex and usually requires a spouse to present detailed evidence tracing all asset activity over the course of the marriage.
Accurate values for all property and debts must be presented in order for the court to conduct equitable distribution. Account statements are sufficient to show the value for bank, retirement or other accounts held in financial institutions. However, professional appraisers are often needed to assign values to real estate, business interests, or certain valuable personal property items, such as jewelry or artwork.
Once the court determines if property or debt is marital, separate, or hybrid, and assigns a value, the court must evaluate a variety of factors in deciding how to distribute the property or debt between the spouses. Some of the factors are:
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
- The duration of the marriage;
- The ages and physical and mental condition of the parties;
- The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of § 20-91 or § 20-95;
- How and when specific items of such marital property were acquired;
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
- The liquid or nonliquid character of all marital property;
- The tax consequences to each party;
- The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
The attorneys at Cooper Ginsberg Gray can assist you with the fair and equitable distribution of property incident to divorce. Each of our lawyers has tried and negotiated numerous cases involving the simplest assets to the most complex cases of distribution of property in Virginia.
Whatever the property distribution issue, our collective experience allows us to approach the matter with the knowledge required for a fair distribution. Contact our office today to learn more about our services.
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