When it comes to property division in a divorce, states must follow one of two methods for dividing a marital estate. The community property method, used by only a handful of states, requires judges to combine all property that either spouse acquired during the marriage and divide it equally between spouses.
Most states follow an equitable division method—meaning that the court will split the property between spouses in a way that is "equitable" based on the entire picture of the couple's finances. Equitable division does not have to be equal or a 50/50 split. Instead, judges must ensure the division is fair for both spouses.
Virginia divorce laws require courts to follow the equitable distribution model when dividing marital property. (Va. Code Ann. § 20-107.3 (B).)
Couples have opportunities throughout the divorce process to agree between themselves on what is a fair division. If a divorcing couples can't resolve all of their property issues on their own, then a judge will decide for them after a hearing or trial on the matter.
In a divorce, the distribution of property depends on which property belongs to the marriage—marital property—and which property belongs to each of the two spouses—separate property. Generally, marital property is property either spouse acquired or earned during the marriage. (Va. Code Ann. § 20-107.3 (A)(2).)
Separate property is property that belonged only to one spouse before marriage. It also includes property given by gift or inheritance only to one spouse during the marriage, like a gift of a rare coin collection from the husband's grandfather to the husband alone or an inheritance upon the death of the wife's great aunt to the wife alone. (Va. Code Ann. § 20-107.3 (A)(1).)
The court may also consider any property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, as marital property. (Va. Code Ann. § 20-107.3 (A)(3)(d).)
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and retirement benefits.
The court must divide the couple's entire marital estate, which includes assets and debts. Like property, marital debt includes any liabilities either spouse acquired during the marriage. (Va. Code Ann. § 20-107.3 (A)(5).) If either spouse acquired a separate debt, the court will order that spouse to pay it. For example, if a couple has a joint credit card and they used to put a new roof on the marital home, the court will order both spouses responsible for the debt. However, if one spouse acquired a debt before the marriage, after the couple's separation, or didn't use it for the marriage, the court will categorize the debt as that spouse's separate responsibility. (Va. Code Ann. § 20-107.3 (A)(4).)
Courts can't change the agreement spouses have with private lenders, so even if a judge orders your spouse to pay a joint debt, the lender can (and likely will) come after you for payment if your spouse fails to pay. If that happens, you will need to ask the court to order your spouse to pay you back.
To divide property, the court must characterize any disputed item of property as marital or separate, and evaluate the property's value, usually using the information provided by the spouses.
Once the judge values all the property, the court will divide it based on several factors, including:
Monetary contributions are property (other than separate property), any appreciation in the value of that property, income, and the use of separate funds for the benefit of the marriage. Non-monetary contributions include homemaking, child-care services, and other unpaid work.
The court will also factor in bad behavior. Where one spouse had an affair, committed a crime, abused the other spouse, or was otherwise at fault, the bad behavior will count against that spouse in the court's evaluation of how the court should fairly divide the property. Also, the court can increase one spouse's share if the other spouse did something to depreciate the marital property. In other words, a jilted spouse can't go on a spending spree or purposefully wreck the family car without having to pay for it later. (Va. Code Ann. § 20-107.3 (E).)
Spousal support is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one they had during the marriage. In Virginia, the court will look at how much of the marital property went to each spouse before deciding whether and how much alimony is appropriate. (Va. Code Ann. § 20-107.3 (F).)
Among other factors, the court will consider fault. A spouse who is at fault in ending the marriage may pay higher support as a result, or find support reduced for that reason. It's also possible that if the marriage ended because one spouse had an affair, then the faithful spouse will not have to pay any support. (Va. Code Ann. § 20-107.1 (E).)
If you need more information on Virginia divorce laws, contact an experienced family law attorney in your area.