His, Hers, Ours: Classifying Property in Divorce

Posted on Oct 23, 2017 by Katie Carter

When you’re happily married, everything is “ours”.  But as soon as one of you starts talking about a potential separation, it’s funny how many things suddenly become “mine” – especially from a man’s perspective.  I’ve only ever represented women only in divorce and custody cases, so I can speak most easily and comfortably about a woman’s mindset.

For the most part, women aren’t the ones saying, “That’s mine.”  Women, in general, are much more giving and understanding of the fact that what was accumulated during the marriage is going to be divided in the divorce.  I’m being a little stereotypical, probably, but I wouldn’t say this if I didn’t feel like, based on my experience, it really is true.

Men, on the other hand, seem much quicker to think (or assume) that whatever exists in the marriage is theirs.  Often the higher wage earners (though certainly not always), men tend to think that their retirement is theirs – and, also, that they have no responsibility to pay support, regardless of the situation established during the marriage.   They tell their wives this, too.  Unabashedly, and without a twinge of self doubt.  “This is mine,” they say.  And their wives, for whatever reason, believe them.

I think it comes from however many years of working as a team, it’s hard to switch to suddenly view him as an opposing party.  It’s hard to think that he’d lie to you, or mislead you, or do something to make you think that you’re not entitled to what the law would allow you to receive—but he will.  Almost without exception, men will.   It’s important to know what’s his, what’s yours, and what’s marital, and subject to division in the divorce.

In Virginia, property is classified in three different categories: separate, marital, and hybrid.  Depending on how property is classified, you’ll see different potential division of property.

Separate property

Property is “his” or “yours” if it’s separate.  Separate property is property that belonged to you before the marriage, was inherited, or was given to you by someone other than your spouse.

Marital Property

Property is “ours” if it was earned, purchased, or acquired during the marriage – regardless of title.  It doesn’t matter whether the home or the car or the retirement account is in one party’s sole name, if it was earned, purchased, or acquired during the marriage, it is marital, and subject to division in the divorce. Just because “he” technically earned the retirement through his employment doesn’t mean that it’s his.  Whether you earned your own retirement through your employment or not, you are equally entitled to the portion that was earned during the marriage.

Some neighbors of mine and I got into a disagreement about marital property the other day.  Though they were happily married (he’s an officer in the Navy, and his wife stays at home with their sons), they had a set of family friends who were getting a divorce.  Even though the wife stayed at home, when they separated, she took the master bedroom. “He earned the money,” my neighbor said, “I don’t see why he should have to move out of the master bedroom.”

It immediately got my back up.  It was a friendly conversation; I’m not representing anyone in this scenario, but I am predisposed to think about things from the woman’s perspective.  And I resent the insinuation that because the woman didn’t work that she deserves a lesser position in the home after separation.  Though he doesn’t HAVE to leave the master bedroom, I don’t see any reason at all why his claim to it should be greater than hers.

Marriage is a partnership; spouses are one entity under the law.  Whatever one spouse earns is also earned by the other spouse, particularly in the scenario where one spouse stayed at home.  She is not entitled to less simply by virtue of the fact that she has worked in the home.

Another thing that bugged me: my neighbor’s wife agreed with him!  I think this speaks to the deep-rooted sense in our society that stay at home moms don’t work.  It really irritated me—and her, as a stay at home mom too!  Whether he technically earned it or you technically earned it is irrelevant.  In divorce, what matters is when it was earned.  If it’s during the marriage, it was earned by both spouses equally.

Hybrid property

Hybrid property is part marital and part separate.  We see this most often in expensive assets, like houses and retirement accounts.   If retirement contributions were made partially before the marriage, or continued on after separation, a retirement account is a hybrid asset.  Part of it is marital, and part is separate.   The same goes for a home.  If it was purchased prior to the marriage and then contributions were made to it during the marriage (like mortgage payments made from marital assets, or considerable improvements made to the property with marital assets), it’s a hybrid asset.

Our challenge is always going to be to determine what portion is marital and what portion is separate—but that’s usually not very hard.   It’s important to start classifying things in your head so that you don’t fall victim to your husband telling you that certain things aren’t yours.  It’s only natural to listen to him, especially after being partners for so long, but it’s time you started thinking for yourself, and getting educated about what your rights are under Virginia law.

Divorce isn’t a bad thing; divorce PROTECTS you.  Divorce ensures that what you’ve built together will be divided between the two of you.  It’s a hard process, to be sure, but it’s there to help make sure that you receive the benefit of the marriage.

Wondering what your divorce rights in Virginia are?

You’re not alone, and this is probably just the tip of the iceberg.  You’re in the right place, and you’re asking the right questions.  A good next step would be to request a free copy of our divorce book or attend our monthly divorce seminar.

The book is a great primer on divorce law in Virginia, and can help answer some of your most basic questions.  The seminar is great because it’s taught by one of our licensed and experienced Virginia divorce and custody attorneys, who can answer some of the “can’t eat, can’t sleep” questions that are distracting you. For more information, to request a copy of our book, to register for the seminar, or to schedule a one on one consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.