Virginia Marital Property FAQ's

When Is a Property Divided in a Divorce?

In a Virginia divorce, property is typically distributed at the end of a divorce case, after a judge has issued a property division order, which is either based on the judge's own decision or the couple's settlement agreement. Then the couple can proceed to handle the distribution of assets per the court's order.

However, during a case, the court can issue a "freeze order," which prevents both spouses from selling or disposing of any property until the judge enters a final divorce decree. (Va. Code Ann. § 20-107.3 (A).)

What's the Difference Between Marital Property and Separate Property?

Marital property is jointly titled property and any property acquired by either spouse during the marriage that is not separate property.

Separate property is property received or acquired:

• before the marriage in the sole name of either spouse
• by one spouse during the marriage through a 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 isolated from marital property.

Income received from separate property during the marriage would remain separate property unless it was created through the personal effort of either spouse. An increase in the value of your separate property during the marriage is also separate property unless marital property or either spouse's personal efforts increased the value (more below on hybrid property).

(Va. Code § 20-107.3(A).)

What Is Hybrid Property?

Hybrid property is any property that is part marital and part separate. Ordinarily, if you contribute separate property to marital property during the marriage, it becomes "transmuted" into 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 before marriage and you sell it and use proceeds from that sale to purchase or contribute to 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 the separate property during the marriage to be marital property if you demonstrate that there is a substantial increase resulting from 1) contributions of marital property or 2) the significant personal efforts of either spouse. (Va. Code § 20-107.3(A)(3)(d-f).)

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 and 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
• any other factors the court finds 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 keeps the property. In this situation, the spouse with the title would be required to pay a sum of money to the spouse without the title.

(Va. Code § 20-107.3(E), (G).)

What About My House?

If you purchased your house during the marriage, the court categorizes it as marital property. However, if you purchased the home using entirely separate property funds, and your spouse's name does not appear on the title, the court may award it to you as your separate property.

If you acquired a house solely in your name before the marriage, it's considered your separate property, unless you have used any 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?

For debts titled in both spouses' names, each spouse is jointly responsible for payment of the debt. If the spouses have individual debts, the court must evaluate whether the debt is marital or separate. Separate debt may include anything one spouse acquired before the marriage, after the couple separated, or if acquired during the marriage, not used for marital purposes. For example, if a wife used a jewelry store credit card to purchase an expensive watch for someone she is having an affair with, the court will assign the debt solely to the wife.

The court will divide marital debt (regardless of whose name is on the bill) in the same manner as marital property. (Va. Code § 20-107.3(A)(4-5).)

You and your spouse can decide who will pay specific debts in a written agreement, but your agreement will not affect any third-party creditors, such as credit card companies. In other words, if your spouse agrees to pay for a debt that is in both of your names, but your spouse fails to pay the debt, the creditor can pursue either one of you.

If you and your ex have not been able to pay off all of your debts before the divorce is finalized, make sure your settlement agreement and divorce judgment have an indemnification clause, which provides that your spouse must reimburse you any amounts you may have to pay a third-party creditor in the event your spouse defaults on a debt.

If you can't come to an agreement on debts, the court may allocate joint debts in a final hearing or make a monetary award to one spouse or the other to account for the debt.

What Can I Do to Prepare for Divorce?

The best way to protect yourself from a financial disaster during and after a divorce is to keep yourself informed by learning everything you can about your household's income, expenses, property, and debts. Get involved in your family finances and keep copies of income tax returns and any other financial statements. Meeting with an experienced attorney will also help prepare you for what's to come in the Virginia divorce process.