Property division is one of the most significant decisions that happens during divorce. How you split your property with your spouse impacts your post-divorce lifestyle and your ability to get a fresh start.
Work with a Fairfax property division lawyer during your divorce. Even if you and your spouse have agreed informally about how you will split your assets and debts, having a family lawyer review the proposal before you sign anything is critical.
How State Law Handles Property Division
The Code of Virginia § 20-107.3 demands that when a judge divides a married couple’s property, the distribution must be equitable. The law does not call for a 50/50 split, but a division that is fair under the circumstances of the case, and the factors that the Court is to consider. A judge has the discretion to consider multiple factors when deciding what is fair in a specific case, including:
- How long the couple was married
- Each spouse’s age and health
- Each spouse’s educational and career attainments and their capacity to support themselves
- Whether either spouse has caregiving responsibilities
- Financial and non-economic support each spouse provided to the family
- Financial and non-economic contributions of each spouse to a particular property item
- Tax implications of the proposed division
The judge may consider many other factors they deem relevant to the issue of a fair property division.
If the parties are able to be fair with each other, spouses usually benefit from negotiating property division issues themselves without judicial intervention. Doing so keeps control in the spouses’ hands of the parties and results in an arrangement both spouses are more likely to buy into and accept as fair. A Fairfax asset division attorney could negotiate on behalf of a spouse, refer a couple to mediation, or review an agreement to analyze tax consequences and ensure the spouse is aware of their rights and responsibilities.
Distinguishing Property Ownership in Divorce
The first step in negotiating a property division is categorizing and valuing the couple’s property. Some property is separate property, some is marital property, and some could be both. A Fairfax attorney could explain how specific property would likely be categorized during an equitable division by the Court.
Separate property is anything one spouse owned on their wedding day that they have treated as separate property during the marriage. Any gifts to one spouse or inheritances they received during the marriage are also separate property. Anything one spouse bought with their separate funds during the marriage could be separate property if they can establish the funds to buy it came from separate property.
Marital property is anything either spouse or both spouses acquired during the marriage, regardless of who bought it or how the property is titled. For example, if it was the practice in a marriage for each spouse to purchase and maintain their own vehicle out of funds they earned, the cars are both marital property even if each spouse titles and registers their own car. When dividing their property, the spouse with the higher-valued vehicle could owe money to the spouse with the lower-valued vehicle.
Gaining an Interest in Separate Property
Property that begins as separate property can become marital property or partially marital property, depending on how the spouse who brought it into the marriage treats it. When the spouse treats it as property belonging to both spouses, the other spouse could gain an interest in it. Interests in otherwise separate assets can be substantial, so it is wise to work with an experienced property division attorney in Fairfax when negotiating these issues.
For example, if one spouse owned a home when they married and the couple lived in the home and raised their children in it, the other spouse could have as much right to the home as the spouse who owned it before marriage. The extent of the spouse’s interest would likely depend on factors including the source of the funds used to pay the mortgage, property taxes, and upkeep, and who was responsible for maintaining the property.
Sometimes, a spouse gains an interest in the additional value an asset gains over the course of the marriage. For example, perhaps one spouse has a pension plan when they marry and continues to contribute to the plan during the marriage. The value of the account at the date of the marriage is the spouse’s separate property, but the spouse’s post-marriage contributions plus the increase in value over the marriage are likely marital property.
Consult a Fairfax Attorney About Property Division Matters
Property disputes can be contentious in even the most amicable divorces. The process is full of potential pitfalls for spouses who do not know their rights.
Talk to a Fairfax property division lawyer when you decide to pursue a divorce. They can guide you through the process and ensure you keep your fair share. Reach out today to discuss your situation with a knowledgeable legal professional.
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