Coates & Davenport, P.C.

Property division: Marital property versus separate property

In Virginia and in most other states in the nation, when a couple is seeking a divorce their property will be divided per equitable distribution. When property is divided in this manner, a judge will decide what would be fair to both parties, meaning that it may not be an exact 50/50 split. In addition, only marital property will be subject to property division; separate property may be kept by the party that owns it. Therefore, it pays to have an understanding of what constitutes marital property and what constitutes separate property.  In Virginia, the burden of proving property is separate is on the party claiming that it is separate - It is presumed that all property acquired during the marriage is marital.

Separate property, on the other hand, consists of assets and debts that a person had prior to getting married. Some examples of separate property include gifts, pensions, awards from a lawsuit and inheritances that occurred PRIOR to the marriage. Also, in general, if an asset is purchased while a couple is married, purely with separate property, in some circumstances it may still be considered separate property if the couple divorces.

Couples should note, however, that it is possible for assets that were once considered to be separate property to be transformed into marital property. This happens through comingling. For example, if a couple uses both separate funds and marital funds to purchase something, it may ultimately be considered marital property. Therefore, spouses who want to retain separate property need to make sure that the property is kept totally separate.

This is only a general overview of property division. Virginia law has many nuances not discussed here. Therefore, divorcing spouses facing the property division process should consult with an attorney, so they can have a better understanding of this topic.

Source: FindLaw, "Divorce Property Division FAQ," accessed Dec. 26, 2017

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