If you’re considering a divorce and you live in Virginia, you’re probably wondering how, exactly, we divide assets here. You are definitely in the right place and I can help you begin to understand what to expect and what to ask for. Let’s jump right in, shall we?
So, first thing’s first. Before we can divide property, we have to classify it as separate, marital, or hybrid.
Let’s talk about what that means.
Separate property is not divided in divorce.
So, what’s separate? Separate property belongs solely to one party. Separate property is anything earned, purchased, or acquired before the marriage, anything given to you or received by you during the marriage from someone other than your spouse, or anything earned, purchased, or acquired after the date of separation.
Marital property is divided in divorce.
Marital property is whatever you earned, purchased, or acquired together during the marriage, regardless of title. It doesn’t matter whether you put only your name or he put only his name on the asset; if it was purchased during the marriage and paid for with marital money, it is marital and subject to division.
Let’s talk some examples.
If you purchased a home during the marriage, made payments from your paycheck, and improved it using your yearly bonus, it’s a purely marital asset.
If you purchased a home during the marriage with proceeds from your trust fund (a la Belle Burden) and did not make any joint expenditures – maybe you even renovated the home from your trust fund – it is not marital. In an ideal world, it would be solely in your name, but we can also trace the source of those funds back to the original (non marital) source, so you probably haven’t commingled to a really difficult degree if you did put both names on it.
If you purchased a home during the marriage using a down payment inherited from your grandmother, but then used your paychecks to make monthly payments or make improvements to the home, it is a hybrid asset. We can separate out what is yours separately and what is marital in the divorce. It sounds complicated, but it isn’t. We do it all the time.
Let’s talk about hybrid property.
Hybrid property is part marital and part separate. It means that the asset in part belongs separately to one party, and in part jointly to both. We can separate this out in most cases, but it’s definitely easiest if the marital assets stay in marital accounts and separate assets stay in separate accounts.
We classify property and then we divide it.
Virginia is also an equitable distribution state, rather than a community property state, so the court – if the court is doing the dividing, rather than the two parties dividing according to their agreement – has some latitude to decide how it will be accomplished.
Usually, marital assets are divided pretty close to 50/50, but the court could use the negative and/or positive monetary and/or nonmonetary contributions to the family to change up those percentages, if it wanted or felt that “equity” warranted it. (Don’t make the mistake of referring to equity, though, as fairness; fairness is subjective and, to the court’s mind, equity is not.)
Most agreements ultimately reflect something fairly close to a 50/50 split. The court will probably also award a 50/50 split, but there is always the possibility of a different division. Talk to an attorney if you have specific facts that you feel could influence the division of assets.
We do this with all assets – real estate, business interests, cars and personal property, retirement accounts, debts (I know, I know – this is a post about assets, but I still didn’t feel responsible not mentioning it) and more.
In terms of “wild card” issues – the ones that can make a case run off the rails – I’d usually say that equitable distribution is not it. Something pretty close to 50/50 is what happens in most cases and this is not where we spend the bulk of our time and energy fighting, unless there’s something particularly complicated about your situation.
Where we DO spend our time and energy fighting is over spousal support and/or custody and visitation.
For more information, request a copy of our free divorce book (or custody, if you have kids, or maybe even both, if you’re on a divine quest for knowledge) or something. Whatever it is, we can help you figure it out.