There are a lot of myths and misconceptions about divorce and the divorce process in Virginia. When it comes to property division, there’s a lot of confusion and misunderstanding. I like to think that a big part of my job is just providing education, so that women know what to expect and at least how the law works.
I saw a question the other day, “How long do we have to be married to get half the house?” and I knew I had to address it, because it clearly shows some confusion in how all of this works.
In Virginia, property is classified in one of three ways: it’s either marital, separate, or hybrid. This is important in terms of the house, but also in terms of all the other types of property that you will amass over a lifetime, both before, during, and after your marriage – so it’s important to understand. This will help you answer not only this question, but questions regarding how other forms of property will be divided in your divorce.
Separate property
Separate property is property that was earned, purchased, or acquired BEFORE you married, or AFTER you separated. It can also be property you acquired during the marriage, if you received it from an inheritance, a gift from someone other than your spouse, or something like a personal injury settlement.
When property is separate – as you can probably tell by the name – it is the sole property of the spouse who earned, purchased, or acquired it. It’s not marital property, and it won’t be divided in the divorce.
That doesn’t mean, though, that it won’t be addressed in the divorce. Often, especially in separation agreements, we will include a provision that specifically addresses and lists separate property. This isn’t because it’s an actual asset of the marriage (by definition, it is not) but because we want to avoid any confusion later. If we list and categorize all the separate property, if any dispute arises later (and, frankly, having taken the time to list and categorize it makes future legal action related to those assets less likely) the judge can see what was intended by the original agreement. It’s an extra added layer of protection, so, even if you have assets that you believe to be separate, it’s a good idea to disclose them to your attorney ahead of time.
Marital Property
Marital property is anything that was earned, purchased, or acquired during the marriage. This would include gifts between spouses, but would not include gifts from your fiancé from prior to your marriage – like, specifically, your engagement ring.
When it comes to marital property, it doesn’t matter about title. Just because he bought a car or a house and didn’t put your name on it does not mean that you don’t have a marital interest. It does, however, mean that he can probably dispose of it without your signature, but that’s typically a different issue – and, even if he DID dispose of it, especially as it became clear that your divorce was imminent, that doesn’t mean that he doesn’t still owe you your portion!
That also goes for the things that are in your sole name. If you have bank accounts into which you’ve funneled money during the marriage, that’s also subject to division. If it’s money from prior to the marriage, or money from post separation, that’s yours separately – but we’d have to trace those funds to prove their origin.
Hybrid Property
Hybrid property is part marital and part separate. I think it’s easiest to understand in the context of a specific example. Today, let’s use the house – since that’s the subject of the underlying query.
If he bought a house prior to marriage, anything he paid towards it prior to that point is separate property. His down payment, any increase in principal resulting from his mortgage payments, etc – is all his separately. The house would be 100% his separately if it was paid off prior to the marriage, or if after the marriage he had a renter in the home whose rent covered all of the mortgage and none of the marital money went towards maintaining that residence.
If he bought the house prior to marriage, but then the two of you made joint mortgage payments after the wedding, it’s part marital and part separate. That doesn’t mean that you earned a flat 50% of the house; you’ve only earned half of what value accumulated during the course of your marriage and prior to your separation.
If you funded part of the home separately – say, you used money from the sale of your condo (which you owned prior to marriage) to fund some serious renovations to the house, which was owned by him prior to the marriage and held in his separate name – then that would be your separate interest too. We’d have to trace these funds, but that’s typically not a problem.
So, at what point do you get half the house?
There’s not a specific number of years that you need to be married to get half the house. You get half the house if you and your husband have contributed an equal amount of money to the home throughout the marriage. This can be from having made mortgage payments from joint money, or, like in the other situation I described, where you each contributed an equal amount of separate money to maintain the home.
If it’s his home and his separate money has gone into maintaining the home, the home is not half yours even if you’ve been married for 100 years.
If it’s his home and a minimal amount of marital money has gone into it, you may only have a small interest in the home. It may be something he either buys out, if he keeps the home, or a lesser percentage that you receive when the home is sold and the proceeds divided.
When we categorize and divide property, we always look at the source of the funds that went into maintaining or purchasing it. If its separate property, regardless of the length of your marriage, you likely don’t have an interest in it. If it was paid for from marital funds, though, it doesn’t matter whether it’s in his name or yours.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.