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How Does Property Get Divided in a Virginia Divorce?

Whether you live in Chesapeake, Suffolk, or elsewhere in Virginia, one of the most important aspects of the divorce process is the division or distribution of marital property. How do Virginia courts divide marital property in the state? What happens to property that could be classified as both separate and marital property? Finally, what are some of the unexpected issues that might arise during property division in a divorce, and how can you prepare for them?

An experienced Suffolk divorce attorney can help you with property division in your divorce.

Dividing Property According to Equitable Distribution

Divorce and issues related to it are governed by Title 20 of the Code of Virginia. More specifically, Section 20-107.3 governs the distribution of marital property in the state. The distribution of marital property in Virginia is divided according to a theory of equitable distribution. The term equitable distribution refers to the division or distribution of marital property in a way that is fair to both of the spouses.

While equitable distribution could result in an equal or 50-50 distribution of marital property under some circumstances, equitable certainly does not mean equal. Indeed, in most divorce cases, the equitable distribution of property does not result in an equal or 50-50 division of property. Equitable means fair, not equal.

Difference Between Marital and Separate Property

However, it is important to remember that only marital property—both assets and debts from the marriage—will be subject to division. What is the difference between marital and separate property?

Separate property is defined as any property that falls into one of the following categories:

  • Acquired before the date of marriage;
  • Acquired during the marriage as a gift or inheritance intended for only one of the spouses;
  • Acquired during the marriage as a result of the sale of separate property by only one spouse; and
  • Property specifically classified as “separate” and thus not divisible in a divorce proceeding per the terms of a premarital agreement (Sections 20-147 through 20-155 of the Code of Virginia).

There may be other situations in which property is classified as separate, but in most cases, if it does not fall into one of the categories listed above, then it is likely to be classified as marital property.

Understanding Commingled Property in Chesapeake and Suffolk

What happens when property looks like both separate and marital property? For example, imagine that one of the spouses receives an inheritance during the marriage and deposits it into a joint bank account from which both spouses draw? Or, for instance, imagine that one of the spouses uses money saved prior to the marriage to invest in renovations to the marital home. This is often known as “commingled” property.

According to the Virginia State Bar, state law has methods in place for handling mixed property. In most cases, the law allows a court to determine which portion of the property is “marital” and which is “separate,” and then the marital portion of the property is divided. This is true of both assets and debts that may be commingled.

Contact a Chesapeake, VA Divorce Attorney

If you have questions about property division, a Chesapeake divorce attorney can help with your case. Our firm regularly assists clients in Chesapeake and Suffolk, VA. Contact Shannon & Associates, P.C. today to get started on your case.

 

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