Virginia is an equitable distribution state, which means that the division of property upon divorce must be fair, even if it will not be divided equally between both spouses. During the division process, the court will consider marital property, separate property, and hybrid property. Marital property is all property acquired during the time of the marriage, it is either jointly titled property or property that was acquired by one party but not made separate.
Furthermore, separate property, which is property owned by either spouse before the marriage, can be deemed marital property if the non-owning spouse has contributed to the asset increasing in value or in income being received through it. Otherwise, the property will remain with its original owner. In addition to this, the marital share of any pension, retirement benefit, personal injury compensation recovery of either party will be classified as marital property. Moreover, if a spouse contributes separate property to marital property during the marriage, such as paying the down payment on a house for example, that property will be deemed marital unless the amount contributed can be traced and documented. In such cases, it will be deemed as hybrid property, which is partially marital and partially separate.
There are many factors that may be considered in order to ensure an equitable, or fair, distribution of property. These factors include : the financial and non-financial contributions made by each spouse to both the wellbeing of the family and also to the acquisition and reservation of marital property; the duration of the marriage; the reasons the marriage is ending and any circumstances that can be considered as ground for divorce; the mental and physical health of both spouses; the nature of the assets and how and when they were acquired; the basis of the debts and liabilities of each spouse; any assets that could be used as security for these debts; tax ramifications and the liquidity of these assets. There are also other special factors that the court may consider necessary in distributing the property, for example, a spouse’s share of the property could be diminished if they intentionally caused a fall in the value of one of the marital assets, or if they increased spending from a shared account in anticipation of divorce.
In the case of marital property that is jointly titled, the court may award it to either spouse or order it to be sold. On the other hand, marital property that is titled separately may not be transferred to the non-title owner. In such a case, the title owner retains the property but could be ordered by the court to pay a monetary sum to the other party.
When estimating the value of the assets, the court must use the ‘fair market value’. This is to ensure that the spouses get the fair value on their assets in case they appreciated or depreciated in value. Moreover, in the case of assets that are difficult to value, such as rare items or real property with special improvements, a professional appraiser might need to be hired to resolve the issue.