In a divorce, EVERYTHING needs to be divided before the judge can sign off on it. But what’s everything?
What needs to be divided in a divorce?
Ultimately, the parties either negotiate the terms of their divorce in a separation agreement, or the judge issues an order and divides everything in court.
Most cases resolve by agreement of the parties – but what goes into the agreement or the court order?
In Virginia, we classify all property as either marital, separate, or hybrid.
Marital property is any property earned, purchased, or acquired during the marriage, regardless of title.
Separate property is anything earned, purchased, or acquired BEFORE the marriage or AFTER separation, other than anything that was (1) inherited by one party or the other, or (2) anything given to one party by someone other than their spouse.
Hybrid property is part marital, part separate.
Then, we divide the things between the parties under equitable distribution.
We’ll divide any real estate you have in common. Whether one party buys out the other party’s interest and refinances into his or her sole name, or the real estate is sold and the proceeds are split, the agreement (or court order) will specify. If there are any other terms – like that one party has a first right of refusal, or that refinance must take place within a certain period of time, or how maintenance and repairs will be shared – those will also be included.
Custody and Visitation
Custody and visitation will also be included in your agreement or court order. Basically, you’ll define how your responsibilities will be shared, and you’ll specify a parenting plan. The more specific you get, the better – don’t think that it’s a better plan to have a generic document that you’ll agree to what parenting time should look like later on. That’s a recipe for disaster!
Retirement accounts are also divided under equitable distribution. This is usually easy, though, because the law provides that you’ll each get your marital share, which is essentially 50% of what was earned during the marriage. You could also agree to each keep your own, but that’s more likely to be a term in a separation agreement than something ordered in court.
In order to enforce these provisions, additional documents are often needed – military pension orders, QDROs, TSP orders, etc. Those are usually entered as orders along with the final divorce decree so that the various financial organizations have court-ordered authorization to release their hold on funds.
Bank accounts are divided, too. Maybe one of you will keep an account post-divorce and you’ll remove the other party’s name. Maybe you’ll split the proceeds. Maybe you’ll close all the accounts and open new ones.
You’ll need to specify the account, what will happen to it, and what will happen to the funds contained therein.
Yes, your debt is divisible in divorce! Usually, the debt is divided 50/50 between the parties – but there can be some exceptions, especially if the money was used for a non-marital purpose.
Cars, Boats, RVs, ATVs, Airplanes, Trailers
Yes, we sometimes divide airplanes! Any of that kind of property is going to be divided. Usually, we’ll name the property, and then specify which party takes it. Sometimes, there’s a refi – especially if both parties are named as owners on an item. We’ll also mention exactly how insurance, payments, and upkeep will be paid.
In the event that one party takes away an asset or assets that are worth far more than the other, there may be a cash payout, or an alternate way of dividing other assets that helps to account for the disparity.
Personal property is divided, too. Usually, this isn’t too complicated, since the parties don’t want the same things. It may be cliché, but the wife often wants family photos, jewelry, antiques, and furniture – and husbands usually want guns, tools, golf equipment, fishing poles, and other sporting items.
In some cases, we make a list of who takes what property. In other cases, we include coin flipping language. Sometimes, we become more involved – though we don’t recommend this, because it’s crazy expensive where most personal property is concerned. (I once had a case where we argued for a very long time about a hat rack – wish I was kidding.)
Again, we may offset the assets later, if one party takes things of significantly more monetary value.
What if an asset is separate? Can we leave it out?
No, you really shouldn’t. Even in the case of a separate asset, ideally it would be included (especially in a separation agreement).
We’re trying to be as clear and as specific as possible, just to minimize potential problems later. If a house is separate and we list its address and define it as separate in the agreement, then there’s very little chance that someone can come back later and ask for a portion of it. And, in a lot of cases, the issues is less whether the spouse attacking the agreement will be successful and more about the time, cost, and blood pressure points associated with the attack.
We want to get you divorced today and minimize problems later – and specifically listing property and classifying it is helpful in doing that.
Support is also handled in a divorce, whether by agreement or by court order.
It’s not an asset, but it’s a biggie!
Basically, everything that you earned during the course of your marriage (and anything that you still have that you brought into the marriage) is going to be categorized and divided. These are just some of the big headings that we always include, but you may have something unique that also needs to be considered.
The best way to determine what will be divided, how it’ll work, and what you can expect to receive is by scheduling a consultation to discuss it one on one with an experienced divorce attorney.
For more information, or to schedule an appointment now, give us a call at 757-425-5200.