Comprehensive and Informative Commentary on State and Federal Legal Matters
One of the first things people think of when they think about divorce is the division of marital property. Regardless of which side of the divorce they may fall, it seems that most people are interested in having this aspect of the process work out most favorably for them. Given this, let’s take a few minutes to briefly explore how property is allocated during divorce proceedings.
In a divorce action, property is categorized three ways : Marital Property, Separate Property, and Mixed Property. One of the major goals of any divorce action is to preserve property. Thus, many times, one will allege a fault ground, if such a basis exists, so that the Court can immediately make a temporary ruling with regard to the use and disposition of marital property. In deciding how to allocate property, the court is required to make an “equitable” distribution of property. Please note that “equitable” and “equal” do not mean the same thing.
1. Marital Property: Marital property is all property that is either jointly titled or acquired during the marriage other than by gift from third persons or by inheritance. This includes that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if the separation was intended to be permanent. The Court’s powers with regard to titled property are limited. The Court may award jointly titled property to either party, or order the sale of jointly titled property and the proceeds split a certain way. However, separately titled property cannot be given to the non-title holder. Nevertheless, the Court can award monetary compensation to the non-titled owner to offset any gain in marital distribution derived from being the sole titled owner. When making a monetary award, the Court can consider the following factors as identified in Virginia Code Section 20-107.3(E):
a. The contributions, monetary and non-monetary, of each party to the well-being of the family;
b. The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
c. The duration of the marriage;
d. The ages and physical and mental condition of the parties;
e. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;
f . How and when specific items of such marital property were acquired;
g. 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;
h. The liquid or non-liquid character of all marital property;
i. The tax consequences to each party; and
j. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
2. Separate, non-marital property: Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and all property acquired during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non-marital property have themselves been kept separate during the marriage. Income derived from separate property is deemed to remain separate property. The Court has no authority to order the division or transfer of separate property.
3. Mixed property: Separate property can be partially converted to marital property and is referred to as mixed property. Income from separate property can be considered martial property to the extent that it is attributable to the significant personal efforts of either party. The non-owning spouse has the burden of showing that the increase is due to his or her personal efforts. When separate and marital property are commingled, the class of property is considered transmuted to the category of property receiving the contribution unless the contributed property is retraceable by a preponderance of the evidence, and was not a gift. When separate and marital property are commingled to purchase or acquire other property, the newly acquired property shall be considered marital property unless the separate property is traceable.
For more information on this topic, or to schedule an in-person consultation, contact Westlake Legal Group at 703-406-7616