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Property Status in a Virginia Divorce: Overview 101

By: Joe Menze

[01.13.2021]  When getting married, it is important to understand what happens to each spouses’ existing property at the time of the marriage. The first step in analyzing your spouse’s property status is to know that Virginia is an equitable distribution state. In a divorce, a court may distribute and classify property in different ways (note this does not mean the court will default to an equal 50/50 split of the property). The court may also classify and distribute your debt. When assessing property in a divorce, it is important to speak with a skilled Virginia divorce attorney.

There are three types of property categories that Virginia divides property into:

1. Separate Property
2. Marital Property
3. Hybrid Property

Virginia Code §20-107.3 lays out what types of property fall into which category.

Separate property will generally be property acquired by either spouse before the marriage, inherited property or assets, items purchased during the marriage from separate funds (or inherited funds), money or income generated from separate funds, or property purchased after your separation. There are, of course, exceptions to the above.

Marital property will generally be all property titled in the names of both parties, income earned from a job during the marriage, property purchased during the marriage with any joint accounts or funds, and even portions of retirement or investment accounts you invested in during the marriage.

Hybrid property is simply (or not so simply) property that is part marital and part separate property.

The Virginia Code also lays out what is considered separate and marital debt.

Separate debt is all debt incurred by either party before the marriage, as well as all debt incurred by either party after the date of the parties’ last separation, as long as the debt was incurred for a reason other than the family’s benefit. Marital debt is all debt incurred in the joint names of the parties before the date of the last separation of the parties, as well as all debt incurred in either party’s name after the date of the marriage and before the date of the last separation of the parties. The court may designate the entire debt as separate or part marital and part separate if a party can show evidence that the debt, or a portion of the debt, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a non-marital purpose.

With these property and debt categories in mind, the way parties behave financially during the marriage and during the divorce creates a significant impact on property division at the conclusion of the divorce, which is one of the reasons why it is important to seek guidance from an experienced Virginia divorce attorney.

The way property and debt are managed during the marriage could leave you responsible or partially responsible for your soon-to-be former spouse’s separate debt. It could also provide a way for your former spouse to claim your separate assets as partially theirs, or you could find that you have an interest in a valuable piece of property you thought belonged to just your spouse. Hiring a Virginia divorce attorney will enable you to feel confident in assessing property status in your divorce.

If you need assistance with your Virginia divorce, contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com.

Related: Divorce