Virginia Marital Property FAQ's
What you need to know about marital property in Virginia.
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When does property get distributed in a divorce?
In Virginia, the court cannot distribute property until the end of a case. The court divides and distributes proper after a final divorce decree is entered. However, during a case, the court can issue a “freeze order” which prevents both spouses from selling or disposing of property until the final decree is entered..
What is marital property?
Marital property is jointly titled property and any property acquired during the marriage that is not separate property. However, it’s common to acquire separate property during marriage – see “What is separate property?,” below.
What is separate property?
Separate property is property acquired:
- before the marriage in the sole name of either spouse
- by one spouse during the marriage by gift from third persons or by inheritance, or
- from the proceeds of separate property, as long the owner of the separate property has kept those proceeds separated from marital property.
Income received from separate property during marriage remains separate property, unless it was created through the personal effort of either spouse. An increase in the value of separate property during marriage is also separate property, unless the increased value was created by marital property or personal efforts of either spouse – but only to the extent to which they contributed to the increase, see “What is hybrid property?,” below.
What is hybrid property?
Hybrid property is property that is partly marital and partly separate. Ordinarily, if you contribute separate property to marital property during the marriage, it becomes marital property. However, if you can document and trace the amount of your contributed separate property, the court can treat that property as hybrid. For example, if you owned a home prior to marriage and you sell it and use proceeds from that sale to purchase or contribute to an a new home during the marriage, that new home can be considered hybrid property-- if you can trace the amount of your contribution. Additionally, the court may consider an increase in the value of separate property during the marriage to be marital property if it’s shown that a substantial increase resulted from 1) contributions of marital property or 2) the significant personal efforts of either spouse.
How does the court divide marital property?
The court makes an equitable (not equal) division of marital property based on the following factors:
- the contributions, monetary and non monetary, of each spouse to the well-being of the family
- the contributions, monetary and non monetary, of each spouse to the acquisition and care and maintenance of such marital property
- the duration of the marriage
- the ages and physical and mental condition of the spouses
- the circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce
- how and when specific items of such marital property were acquired
- the debts and liabilities of each spouse, the basis for such debts sand liabilities, and the property which may serve as security for such debts and liabilities
- the liquid or non-liquid character of all marital property
- the tax consequences to each spouse, 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 court can award jointly titled property to either spouse, or order such property sold. However, the court may not award separately titled marital property to the non-title owner. Instead, the court is authorized to award a monetary sum to the non-title owner, while the title owner retains the property. In this situation, the spouse with the title would be required to pay a sum of money to the spouse without title.
What about my engagement ring?
As long as you acquired the engagement ring prior to the marriage, it is considered separate property.
What about my house?
If you acquired your house during the marriage, it is considered marital property unless you purchased it using entirely separate property funs and your spouse’s name does not appear on the title. If you acquired the house prior to marriage and solely in your name, it is your separate property unless you have used marital income to pay the mortgage or you added your spouse to the title of the house.
What about my professional degree?
Virginia law generally considers professional degrees earned during marriage to be the separate property of the person who earned the degree, even if the other spouse supported the household during that time.
What about our debts?
Each spouse is legally responsible to pay for the debts titled solely in his or her name. For debts titled in both spouses’ names, each spouse is jointly responsible for payment of the debt. You and your spouse can decide who will pay the debt in a written agreement, but your agreement will have no effect on the third party creditor. In other words, if your spouse agrees to pay for a debt that is in your name and your spouse fails to pay the debt, the creditor can only pursue you because you’re the named debtor. In this situation, an agreement prepared by an attorney would usually provide that you have the right to recover from your spouse any amounts that you had to pay the creditor. If you do not make an agreement, the court may allocate jointly titled debts in a final hearing, or make a monetary award to one spouse or the other to account for the debt.
If I haven’t filed for divorce yet, what can I do to prepare for divorce?
The best way to protect yourself from a divorce financial disaster is to keep yourself informed by learning everything you can about your household’s property and income. Be involved in your family finances and keep copies of income tax returns and any other financial statements.