In Virginia, we have three separate classifications for property: separate, marital, and hybrid. How property is classified impacts how it will be divided in a divorce.
Marital and separate property are clear; what is marital is divided in the divorce, and what is separate belongs to the party who separately owns it.
Hybrid property, on the other hand, is often less clear, because hybrid property is part marital and part separate in nature.
How do you tell if property is hybrid?
Marital property is anything earned, purchased, or acquired during the marriage regardless of title. Separate property, on the other hand, is anything earned, purchased, or acquired BEFORE the marriage, or anything that either spouse received as a gift from someone other than their spouse or inherited in their sole name.
Hybrid assets are usually larger assets, like a house or a retirement account. Let’s look at an example.
Let’s say you bought a house prior to your marriage. You put down a $50,000 down payment, and you made mortgage payments on it for five years before you married. After you married, your partner moved in, and mortgage payments continued to be made.
If mortgage payments were made with marital money – money you or he earned during the marriage – then the home is at least part-marital. We don’t look at WHO earned it, but rather WHEN it was earned. Money that either of you earn in your paycheck during the marriage is money earned during the marriage; it doesn’t matter whose name is on the paystub.
The mortgage payments could be made separately, even after marriage, if you used, for example, money that you inherited to make the payments. It could also be separate if you moved into a separate residence and had a tenant in yours. Assuming that the tenant’s rent covered the mortgage and that you put no additional marital money into the home during your marriage, then you could preserve the entirety of the home as a separate asset.
It’s when marital and separate money mix that you have a hybrid asset.
How are hybrid assets divided in a Virginia divorce?
It’s really pretty straightforward. The part of the home that is marital, including any equity that accrued as a result of that contribution, is marital, and will be divided in the divorce. The part that is separate will be the separate property of the spouse who owned it initially, including any equity that accrued as a result of that separate contribution.
It’s just a question of math, but the answer is still the same: what’s separate is separate, and what’s marital is divided. It might sound complicated but it’s not too bad. We do this math all the time.
What about mortgage payments made after separation?
Anything earned, purchased or acquired after separation is separate, too. (That’s why, sometimes, we hear about bonuses and other benefits being delayed until after the separation. Sneaky, sneaky.) So, if he moves out and you continue to make mortgage payments after the separation, that part would count towards your separate interest in the home, too. So, don’t forget to account for this!
Keep in mind, though, that the entire amount of the mortgage you pay isn’t necessarily going towards the loan balance. Most of the time, mortgages include the escrow amounts – so the money that you’re paying in to cover your homeowner’s insurance, taxes, and interest, as well as the amount that you’re actually paying down to reduce the principal balance.
Those escrowed pieces don’t increase the value of your home; they’re a bill like any other utility or other bill you might pay. They don’t increase your separate contribution, and your separate portion won’t be reduced by the total overall amount of your mortgage payment.
It’s important to know how property is divided in Virginia so that you can give your Virginia divorce attorney all the information they need to trace your property, especially if it is separate or hybrid. For more information, to schedule a consultation, or to register to attend a monthly divorce seminar, give us a call at 757-425-5200 or visit our website at hoflaw.com.