Technically, everything should get divided in divorce. Anything, that is, that was earned, purchased or acquired during the marriage.Technically, everything should get divided in divorce. Anything, that is, that was earned, purchased or acquired during the marriage.
In Virginia (as in most places, though I can’t speak for anywhere outside the Commonwealth), property is divided into three separate categories: marital, separate, and hybrid. Before we divide it in divorce, we classify it. The classification is often important to how a piece of property is handled, so it’s important to look at that piece of the puzzle first.
Of course, that being said, we don’t often spend a lot of time on many items that may be involved in a marriage. We don’t, generally speaking, spend a lot of time dividing bath towels, fondue forks, or throw pillows. We don’t separate things down to the last corkscrew or thumb drive (unless, of course, that thumb drive includes the family photos). Though the extent to which personal property is divided can vary pretty dramatically, we don’t usually divide every single item between the parties – though, theoretically at least, that’s possible.
What does it mean – marital, separate, or hybrid?
Property in Virginia falls into one of three categories.
Marital property is anything that was earned, purchased, or acquired during the marriage. When it comes to marital property, title doesn’t matter. So the fact that only his name is on the car, or the deed of the house – it doesn’t matter. Property is separate, on the other hand, if it was earned, purchased, or acquired BEFORE the marriage, or after separation. Separate property can also include gifts from anyone other than your spouse, personal injury settlements, or inheritances, so long as they’re attributed only to one spouse.
Property is hybrid when it’s part marital and part separate. That’s usually something we see more in the case of a bigger asset, like a house or a retirement account, rather than a piece of personal property.
It COULD include personal property. It could be a hybrid asset if, say, you purchased a car prior to marriage, and then you rebuilt it, or put tons of money into it during the marriage. Likewise, if you put a down payment on a car before marriage, and then made marital monthly payments on the car after the marriage, it’d be a hybrid asset.
Wait – I don’t understand the gift or inheritance thing.
A good question! If property was given to you by someone other than your husband, it’s separate, no matter when it was given to you.
Money that was given to you by your mom, or an inheritance from your grandmother, is yours separately. Same goes for any tangible property; a ring given to you by your mom is yours separately. A ring given to you by your husband, though, is marital property.
Anything that’s yours separately isn’t part of the divorce. It’s yours. Often, we do mention separate property in a separation agreement, but technically we wouldn’t have to; it’s yours to do with as you please.
One caveat, though: if you take money that was given to you by someone else (from a personal injury settlement, a gift, or an inheritance) and you commingle it with marital money, it may be lost. If you deposited your inheritance in the marital bank account, and it was spent over the course of time, there’s nothing that can be done. It’s gone. We’d have to be able to, working backwards, trace the money from your inheritance, settlement, or gift, into an account, and still be able to find it. If it’s gone, or already spent, there’s not much we can do. If you fall into this category, definitely talk to an attorney sooner rather than later, just in case there’s anything we can do to recover your money. Give us a call at 757-425-5200 to discuss your options.
So, how do we decide who gets what?
There’s a lot of freedom there. In fact, I’ve seen so many things happen that it’s hard for me to even say what “usually” happens.
Probably most of the time, one of the parties makes a list of what he or she wants to take from the marriage. The other keeps the rest.
Other times, though, the parties do a coin toss; the person who wins the coin toss picks the first item of property, and the person who loses gets second and third pick. From that point, they alternate, until all of the property in the home has been claimed.
Other choose to sell most of the items, and split the money. Others split the items, then sell, and keep their half of the money. Still others walk away from almost all of the property in the home, preferring to buy new without the memory of the old.
There’s no right or wrong. All I can say, though, is that it’s better to reach an agreement between yourselves, rather than involving lawyers, where personal property is concerned. Secondhand, most of these things really aren’t worth much, so it’s not worth paying an attorney’s hourly rate to fight over them. Most of the time, personal property really isn’t a big issue, and very little time is spent discussing it.
What about big things, like furniture and appliances?
Furniture is usually divided much like other property. Someone gets the dining room table, someone else the guest bedroom furniture. Often, husband and wife are concerned with different items – she wants the bed or the table, and he wants the recliner, the tools, and the TV. Often, we’re able to reach an agreement fairly quickly, because the two don’t want the same things.
Appliances typically go with the home. If someone is refinancing and keeping the home, they’ll usually keep the appliances, too. This is less a principle of divorce law and more one of real estate; appliances are often fixtures, and run with the house. If it’s being sold, chances are you’ll sell the house with the appliances included. When you get your share of the equity, that’ll include your payout for those appliances.
How are cars, boats, jet skis, RVs, and planes handled?
All of these items are handled pretty much the same. We attribute a monetary value to them, and we try to make sure that either the value is similar on each side, or the party receiving more things with value reimburses the other party for their marital portion.
Cars are generally the most obvious example. It’s not just what a car is worth, of course—like a house, we also look at what is owed. A new car that still has a loan on it really might not be worth all that much, similar to an old car – even if there’s no loan, it’s devalued because of its age. We have to look at all those pieces – both the value of the asset and any debt associated with it – to determine total value. Typically, if you keep a car with a loan on it, you also take the loan.
Boats, jet skis, RVs, and planes (yes, I’ve handled a divorce where we divided a plane!) are handled much the same way. We just look at the value of the asset. If we can’t agree, we can always sell the items and split the proceeds.
Property is usually handled pretty quickly and easily. Though it’s probably worth a fair bit (especially if you’re considering replacement value), it’s often not worth having an attorney pay to fight over those things.
For more information about dividing personal property in divorce, give our office a call at (757) 425-5200 to schedule a confidential consultation with one of our licensed and experienced Virginia divorce and custody attorneys.
