Coates & Davenport, P.C.

Are there cases in which a family home may be considered separate property in divorce?

Going through a divorce can be an emotional and frustrating experience. Every divorce case has unique factors that will affect how assets and property are divided. For many divorcing couples, a family home is among their largest and most hotly-contested assets.

Educating yourself about how property and assets are divided in Virginia divorces can help you plan and prepare for your post-divorce life. If you believe that you may retain sole ownership of a home, careful exploration of state law and precedent is important.

Most family homes qualify as shared or marital property

The Virginia family courts do their best to divide assets in a manner that is equitable and fair. This means that assets and debts acquired during your marriage are subject to equitable or fair division by the courts. There are exceptions, however, including inherited property, property that was received as a gift and property you owned outright prior to a marriage. If your home falls into any of these categories, you may be able to claim your home as separate property, thereby making it exempt from the asset division process.

Many divorcing homeowners in Virginia purchase a home while married. In this scenario, both spouses likely contributed substantial finances to a mortgage and toward the maintenance of a home and the home would be considered marital property under Virginia law.

Commingling is common when it comes to marital homes

In the context of a family home, commingling refers to the process of combining separate property with marital property. Often, commingling involves placing separate property into a joint bank account with a spouse. When separate property refers to a shared home, the courts will examine several factors to determine whether a home should be classified as separate or marital property.

For example, even if you paid off a home prior to getting married, houses require a significant amount of maintenance. Your soon-to-be ex-spouse likely cleaned, painted and contributed financially to your home’s upkeep. He or she may have paid utilities or property taxes. In general, the more financial contributions a spouse made, the greater likelihood that a court will consider a home to be marital property.

If you are divorcing and plan to argue that your marital home is separate property, it is important to start building your legal grounds for that claim as soon as possible. Analyzing financial records and getting sound advice from an attorney who understands how property is divided in Virginia divorces can be a tremendous asset.

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