Division of Property

The division of property incident to a divorce, otherwise known as "equitable distribution," is a three-step process by which courts divide and allocate the marital assets and debts of divorcing spouses.

First, property owned by one or both spouses must be classified as either marital, separate, or hybrid property. Definitions for each category can be found in the relevant section of the Code of Virginia. The equitable distribution statutes create a set of legal presumptions, based upon the title, the method of acquisition, and the date of acquisition of property at issue. Those presumptions serve as a baseline for determining whether the property is marital, separate or hybrid. However, those presumptions can be rebutted if the court is presented with evidence of certain circumstances surrounding the acquisition, ownership, or maintenance of the property.

Once property is classified, its value must be determined. Depending on the type of property, establishing value may involve as little as the production of a recent account statement, or as much as a formal appraisal by a trained, third-party professional.

After property is classified and its value determined, a court has the authority to distribute the marital property based upon the consideration of certain factors and circumstances related to the property, the parties, and the marriage itself. These factors include, but are not limited to, the following:

  1. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. the contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  3. the duration of the marriage;
  4. the ages and physical and mental condition of the parties;
  5. the circumstances and factors which contributed to the dissolution of the marriage;
  6. how and when specific items of such marital property were acquired;
  7. the debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  8. the liquid or nonliquid character of all marital property;
  9. the tax consequences to each party, and;
  10. the use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.

The court has no authority to order the distribution of property that it classifies as the separate property of one spouse, nor can it allocate marital property titled to one party to the other party (though it can make a monetary award with regard to that marital property).

The following are some common legal and factual issues related to equitable distribution:

-Can property owned by one spouse prior to the marriage ever be considered marital property?

-Does the name on the title to property determine how the property is classified?

-Can a spouse be awarded half of the other party's retirement benefit?

-Are wages earned after separation but prior to divorce considered marital property?

-Can spouses agree on the value of property without getting a professional appraisal?

-Are disability benefits or personal injury awards received by one spouse considered separate property?

-Can a court award one spouse more than half of the marital property?

-Are college funds started during the marriage for the benefit of minor children subject to classification and division upon divorce?

To view statutory law relevant to equitable distribution, follow this link to Code Sections

To view case law relevant to equitable distribution, follow this link to Case Finder

To obtain legal advice concerning equitable distribution or other family law issues, please contact Raynor & Farmer, P.C.