Common Questions About Property Division in a Virginia Divorce
By: John Whitbeck
During a Virginia divorce, dividing marital assets and liabilities is typically one of the most difficult aspects to resolve. Before you get worried about losing everything, you need to contact a Virginia divorce attorney who can put your fears to rest. Here are some of the frequently asked questions about property division in a Virginia divorce.
What is Marital Property versus Separate Property?
The court will determine how property is classified and what it is worth before it is divided. Marital property is any property that includes property, income, other assets, and debts that were accumulated during your marriage. Marital assets and liabilities can include retirement funds, real estate, wages, pensions, personal property, credit card bills, car loans, mortgages, and more.
Separate property would remain with whoever it belongs to, which can include premarital assets and debts, along with inheritances or gifts that were specifically given to you and not to both you and your spouse. It’s imperative to understand that there are some circumstances where separate property can turn into marital property if you commingle it, which means mixing it with your marital property. An experienced Virginia divorce attorney can help you with any questions you may have.
Who Gets to Keep the Marital Home?
There is no definitive answer on who keeps the marital home. This is something you can negotiate during the property settlement agreement. If you are the parent who has primary physical custody, you may get the home, but the question is whether you can afford it. You need to weigh the pros and cons of whether it’s truly feasible for you to remain in the home. In many cases, the best decision is to sell the house and divide the money among both spouses. Another option is one spouse buys the other spouse out of the home for a percentage of the home’s equity, usually 50%.
How do You Determine the Value for Marital Assets?
Once you identify all your marital property that will be divided, you have to determine its worth. You will need to outline your assets and determine what the fair market value is for each. This isn’t necessarily what the purchase price was for a particular item, nor does it mean the value of what someone would pay for the item today (replacement value). The fair market value is essentially what someone would pay the seller for an item when there is not the need to sell or buy the item in question.
Do Prenuptial Agreements Protect my Assets?
Prenuptial agreements typically define property that is marital and property that is separate. Drafting a prenuptial agreement isn’t a guarantee that your property will be protected. Some agreements are not valid and will therefore be rejected by the court. This is one of the reasons why it’s important you have a knowledgeable Virginia prenuptial agreement attorney draft your agreement.
Is my Spouse Automatically Entitled to Half of my Retirement Accounts?
Not automatically. Depending on the circumstances, there is a chance that your spouse could be entitled to half of your retirement accounts. Any part of your retirement that was earned during the marriage could be considered marital property and therefore subject to division. Virginia law provides that a spouse can only get a maximum of 50% of the marital share of the other spouse’s retirement account.
To learn more about divorce, visit our Divorce Law page.
John C. Whitbeck, Jr. is the founder of WhitbeckBennett. His practice focuses on family law, special education law, and mental health law. He regularly practices in several jurisdictions in the Northern Virginia area. He has also been certified as an expert witness in litigation.