In Virginia, a court will divide marital property during a divorce based on a system called equitable distribution. This means that the property will be split between spouses in a way that is equitable based on the entire picture of the couple's finances. An equitable division does not have to be equal. Couples have opportunities throughout the divorce process to agree between themselves on what is a fair division. If they can't reach an agreement or just can't agree about certain items of property, then the court will decide for them.
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 acquired or earned during the marriage. Property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, may also be considered marital property.
Separate property is property that belonged only to one spouse before marriage. It could also include some property given 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.
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, benefits, and even debts. Marital property must be divided between the spouses when the marriage ends. In Virginia, separate property remains in the hands of the spouse who owned it before or during the marriage. All of the couples debts must be divided, too.
In order to divide property, the court must characterize any disputed item of property as marital or separate, and evaluate the property's value, usually using information provided by the spouses. Once all the property is valued, the court will divide it based on a number of factors. These factors include the spouses’ monetary and non-monetary contributions to the well-being of the family and to the acquisition of property. 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 look at how and when marital property was acquired, the length of the marriage, the age and health condition of each spouse, debts and which property the debts encumber, tax consequences, and whether an item is liquid – cash being the most liquid asset, while real estate or stock in a company are among the least liquid because they tend to take longer to convert to cash.
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 property should be fairly divided. 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.
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 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. 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.