A married couple’s property is distributed equitably during a divorce here in Virginia, meaning a judge divides assets in a way that the judge considers fair.
However, this is different than equal distribution, which divides property 50-50, regardless of circumstances.
The Virginia system, then, is far more complicated. If you’re unsure what’s going to happen to your assets – and, most importantly, your house – during your divorce, you may want to get in touch with an experienced divorce attorney.
What does “equitable distribution” mean in Virginia?
As stated before, equitable distribution is not the same as equal distribution.
Under equal distribution, spouses split all assets 50/50 – regardless of each party’s circumstances. While some may view that as a win, an equal split isn’t always the fairest.
Under equitable distribution, courts divide assets by considering each party’s financial situation. So, the division can be whatever the judge deems fair based on the attorney’s presentation. (Or whatever division the parties agree to, if the parties are doing an uncontested divorce).
In Virginia, how is equitable distribution decided?
There are a few ways for a married couple to determine how to divide property and other assets equitably.
- Couples and their lawyers can work together determine what is fair;
- If that does work, the lawyers may get a mediator involved (rare); or
- If they cannot reach an agreement, they can allow the court to decide.
Factors considered when dividing marital property (as well as debts) include:
- The monetary contributions of each spouse towards the family and property.
- The length of time the couple was married.
- The age, health, and mental condition of each party.
- How and when the coupe acquired the property.
- Debts and liabilities, as well as tax consequences
This is why having an attorney that can present your case well is key. A lot of the consequences of dividing assets are not obvious- for example, it’s easy to undervalue a pension, or accidentally trade post-tax assets for pre-tax assets.
What property in Virginia qualifies for equitable distribution?
Under Va. Code Ann. § 20-107.3 (A)(2) the only property affected by equitable distribution in a divorce is marital property, not separate property.
Marital Property in Virginia
Marital property is any asset or income that either spouse acquired throughout their marriage. This means any properties purchased during marriage are subject to equitable distribution.
So, if you buy a home during the marriage, the home is marital. If you bought the home before the marriage, the equity gained during the marriage may be marital. If you bought the home with separate property, a lawyer can help you untangle what part is marital and what part is separate.
Virginia does not use the term “community property”, but the concept is similar.
Separate Property in Virginia
Separate property does not qualify for equitable distribution. So, if a property belonged to one spouse before the marriage – and was not transferred to marital property – it stays with that spouse and that spouse alone.