The moment you and your spouse agree to divorce often leads to a sense of relief as you step off what’s likely been an emotional rollercoaster. The next move is to attend to the practical matters of the process, and that may mean anxiety raises its ugly head as you think about dividing your property. You don’t want to be greedy, but you must make sure you get what you’re entitled to and need.
That’s why Virginia law states that marital property must be divided via equitable distribution. This guide will give you the information you need about the equitable distribution legal process.
What Is Equitable Distribution in Virginia?
Equitable distribution doesn’t mean everything is added up and split 50/50. Virginia courts look at each spouse’s monetary and non-monetary contributions to the family’s overall well-being, which means they consider the characteristics of each piece of property and which of you is most likely to use a particular item.
It’s not all cut and dried, however. There are three classifications of property under Virginia law, and these will have an effect on the total marital assets.
3 Property Classifications for Marital Assets
Virginia joined many states in choosing an equitable distribution model for settling divorces, but lawmakers had to decide on a system for classifying assets. The result was that property, as well as debts, should be classified as marital, separate, or hybrid (part marital and part separate). These are defined as:
The definition of marital property is all property owned jointly by spouses, and all other property acquired from the date of the marriage and ending with the date of separation. This type of property usually includes items, such as your home, that are titled in the names of both spouses, as well as retirement accounts, even if they are only in the name of one spouse.
It’s also common to accumulate separate property during your marriage. You might think separate property only includes items each of you brought into the union, meaning it was acquired or received before the wedding. There are other factors that determine separate property under Virginia law, however, including:
- Assets in the sole name of either spouse that were received or acquired prior to marriage
- Assets owned by one spouse that were received as a gift from a third party or through inheritance
- Money received through the sale of separate property, as long as the owning spouse has kept the proceeds apart from marital property, meaning they were not merged into a joint account
A qualified law professional can help you determine which of your assets can be classified as separate during your divorce proceedings.
Hybrid property includes any property that’s part marital and part separate. If you owned a house prior to your marriage, for example, and subsequently sold it and rolled the money into buying a new home for you and your spouse, the new home can be considered hybrid property if you can show documentation of your contribution. If not, the court will rule that the home is entirely marital property.
The court also may consider any increase in value of the separate property during the marriage as marital property if it can be documented that this increase came from contributions of marital property or through the serious personal efforts of a single spouse.
Considering these definitions should help you prevent any surprises – and arguments – over who gets what property. It’s a part of the law that was designed to make divorce property division less contentious, whenever possible, by codifying the guidelines they use to make their decisions.
Factors Considered by Virginia Courts When Dividing Marital Property
Virginia courts have the power to weigh many considerations when dividing property in a divorce. That often begins with a list of factors that are set by statute to help them make equitable rulings on property distribution. These include:
In Virginia, you must have grounds for a divorce, and the judge will take into consideration the fault of one spouse, which may mean a higher percentage of the property goes to the injured spouse.
- Financial Misbehavior
Spouses who recklessly or fraudulently spent marital assets could receive a lower percentage of the property.
- Income and Earning Ability
The court will likely look at the incomes and earning ability of each spouse. Factors also taken into consideration include age, education level, and health. The judge may decide that the spouse with fewer financial prospects should be granted a larger percentage of the assets.
- Contributions to Spousal Education
If you contributed significantly toward your spouse’s education and earning ability, Virginia courts may award you a larger percentage of the marital assets.
- Child Custody
If one of you has full custody of your children following the breakup, this can result in an increased likelihood of receiving a higher percentage of the assets or being granted certain pieces of marital property, such as the family house.
In addition, the judge will consider if either spouse owes alimony from a previous marriage, how long the marriage lasted, the tax implications of dividing the property, and anything else the court considers relevant in your particular case. Anyone seeking further insight into these decisions would be wise to consult with a divorce attorney.
Courts Consider Spousal Support After Equitable Distribution
The judge will determine whether spousal support is justified after reaching a decision regarding the equitable distribution of assets. Spousal support means one spouse contributes financially to the other so they can maintain separate standards of living similar to what they had during the marriage.
Here’s what to keep in mind:
- It’s important to note that in the state of Virginia, alimony is not calculated or affected by child custody.
- The court takes many factors into consideration when deciding to award support payments.
- They will also weigh any reasons why the marriage didn’t work, including adultery, cruelty, criminal activity, abuse, and other acts listed by law – meaning an innocent party may not have to pay alimony, even if other factors are met.
- The duration of alimony payments is normally based on the length of the marriage, with the usual standard being one year of alimony per three years of marriage.
Understanding these criteria will help you enter into a divorce knowing what is ahead and ready to move forward to the next phase of your life as equitably and painlessly as possible. Expert advice can often make such a crucial step in life much easier to navigate for those unsure about how to proceed.
Get Help Navigating Equitable Distribution Laws in Virginia
Virginia’s equitable distribution law has its complexities and nuances. The Law Office of Michael Ephraim has an experienced legal team that can guide you through the process and help ensure distribution is indeed equitable. We’ve been down this road thousands of times, so contact us to make the process as painless as possible if you’re considering or have decided to divorce.