What do I need to know about our property?
It is most important to stay informed. Learn everything you can about your spouse's property and income. The best way to protect yourself from a divorce disaster is to keep yourself informed. Be curious. Keep copies of income tax returns. Insist on keeping copies of any and all financial statements you are asked to sign. Keep copies of all bank and stock statements you can find. Make copies of any computer files which document your family finances. Be involved in the family finances. Spouses who know what there is before a divorce happens are better off than those who do not.
When does property get distributed?
The court cannot distribute property until the end of a case, and the only property order which a court can enter while the suit is pending is a "freeze" or injunction order, ordering both parties not to sell or dispose of property until a final hearing.
What constitutes marital property?
Marital property is all property that is either jointly titled, or acquired during the marriage other than by gift from third persons or by inheritance, no matter how titled. The court is allowed to award jointly titled property to either party, or order such property sold. The court may not award separately titled marital property to the non-title owner; however, the court is authorized to award a "monetary award" to the non-title owner, whereby the spouse who has more marital property titled in his/her name is required to pay a sum of money to the non-title owner. There is no presumption of equal division of marital property under Virginia law.
How does the court decide on a monetary award or what constitutes an "equitable" division of marital property?
The court considers the following factors:
- The contributions, monetary and non monetary, of each party to the well-being of the family;
- The contributions, monetary and non monetary, 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; 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 party; and
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
What constitutes separate, non-marital property?
Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and property acquired by one party solely during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non marital property have themselves been kept separate during the marriage.
What is hybrid property?
Hybrid property is a piece of property that is partly marital and partly separate. Ordinarily, separate property which is contributed to martial property during the marriage becomes marital, but if the amount of the contribution of separate property can be documented and traced by a preponderance of the evidence, the property may be treated as hybrid property. For example, if one spouse sells a home that they owned prior to the marriage and uses the proceeds from their separate, pre-marital asset to purchase or contribute to an asset during the marriage, hybrid property may be created if the separate proceeds which were contributed remain traceable. Marital contributions to separate property can be considered gifts from the marriage to one spouse, however, an increase in the value of separate property during the marriage may be considered marital property if one can show that the increase resulted from contributions of marital property, or the substantial personal efforts of either spouse.
What about my engagement ring?
Since the engagement ring was acquired prior to the marriage, it is considered separate property.
What about my house?
If the house was acquired during the marriage, it is considered marital property however if it was purchased by one spouse with entirely separate funds, and only that spouse appears on the title it may be separate property. If the house was acquired by one spouse prior to the marriage, it is that spouse's separate property, however, there may be a marital component if marital income has been used to pay the mortgage or the house became jointly titled.
What about my professional degree?
Under Virginia law, all professional degrees (law degrees, medical degrees, etc) are separate property.
What about our debts?
Debts acquired during the marriage are presumptively marital, however, each spouse is legally responsible to pay for the debts titled solely in their name. For debts titled in both parties' names, each party is jointly responsible for payment of the debt. You and your spouse can otherwise allocate the debt in a written agreement, but your agreement will have no effect on the third party creditor. In other words, if the husband agrees to pay for a debt that is in the wife's sole name, but then fails to pay the debt, the creditor can only pursue the wife, since she is the named debtor. An agreement prepared by an attorney, in such a situation, would usually provide that the wife has the right to recover from the husband any amounts she has to pay the creditor which he agreed to pay, but ultimately failed to pay. If no agreement is reached, a court may allocate jointly titled debts in a final hearing, or make a monetary award to one party or the other to account for the allocation of debt between the parties.