Understanding Asset Division in Virginia
Aug. 19, 2022
Division is inherent to divorce. As you and your soon-to-be ex-spouse begin living separate lives, the assets and debts you accumulated during the marriage must be divided as well. Each of you must give up some things and leave with others.
Even when you agree that divorce is the best course of action for each of you, agreeing on who gets what can be difficult. Because it is an emotional time in your lives, the division of property process can become extremely contentious.
E. Gordon Peters, Jr., Attorney at Law has a long history of helping clients through divorces in Lynchburg and Blackstone, Virginia, and throughout Amherst, Bedford, Campbell, Charlotte, Nottoway, and Prince Edward counties. He understands that letting go of things in a divorce isn’t always easy.
What Assets Do I Get in a Divorce?
There are two categories of assets in a marriage. Marital property is those assets you and your spouse acquired from the day you married through the day you separated. That means there is a presumption that those assets belong to both of you. Therefore, they must be divided between you in divorce.
Separate property includes anything each of you owned prior to the marriage. It may also include certain assets you or your spouse acquired individually during the marriage. For example, if you received an inheritance or a gift, it will likely be separate property. Separate property is not subject to division in a divorce.
Although this sounds somewhat black and white, there are gray areas in determining what is marital property and what is separate property. For example, if prior to the marriage, your spouse bought the home you lived in together during the marriage, some of the value of that asset may be considered separate and some of it as marital property. Likewise, if you received real estate as an inheritance, but you used your joint checking account to make improvements to the property, some of it may be considered marital property.
As you can see, the division of assets is not always clear. If you are filing for divorce or your spouse is, it is wise to talk to a divorce attorney about this issue.
Who Determines How Our Assets
Virginia law provides for the equitable division of marital assets rather than an equal division. The difference is that you may end up with more or less than a pure 50/50 split based on the value of those assets. Rather, you may end up with what is fair based on your needs and your spouse’s.
Ultimately, a judge determines how your assets are divided. However, in an uncontested divorce in which you and your spouse can agree to all terms of the divorce, you two will document the division of marital assets in a marital dissolution agreement which you will submit to the court for approval.
If you are going through a contested divorce because you and your spouse cannot agree on specific terms, the judge will render a decision regarding property division.
What Factors May Determine What Is Equitable in Property Division?
The court will consider multiple factors in the division of marital assets and debts. These include but are not limited to:
The physical and mental health of each spouse;
Each spouse’s age;
The separate property owned by each spouse and their debts and liabilities;
The length of the marriage;
How and when the property was acquired;
The liquidity of marital property; and,
The tax consequences for each spouse.
The court will also consider the contributions to the marriage and the family’s well-being during the marriage. These could be monetary contributions, such as income earned, or non-monetary contributions, such as a spouse’s role as a homemaker or primary role in taking care of the children.
In Virginia, the court will also take into consideration the behavior of each spouse when deciding what is equitable in property division. A spouse who had an extramarital affair or who committed domestic violence against the other spouse could be penalized. So could a spouse who went on a spending spree in anticipation of the divorce and acquired significant marital debt.
Legal Advocacy You Can Trust
Who gets what in a divorce may be critical to how you begin this new chapter in your life. You need to work with a family law attorney like Gordon who will help ensure assets are valued fairly, investigate the “gray” areas of the property, and protect your best interests in the process.
If you are considering divorce or have been served with divorce papers in Lynchburg or Blackstone, Virginia, or surrounding counties, call E. Gordon Peters, Jr., Attorney at Law now.