Also known as equitable distribution, property division is the process of dividing property rights and obligations between spouses during the process of a divorce. Property division may be agreed upon between the soupses through a property settlement, or it may be decided in court during the judicial process of divorce. The process of property division is affected by state laws such as community property laws, definitions of marital contributions, etc.
Virginia is an equitable distribution state, and only property acquired during the course of the marriage is subject to division following divorce. Some factors considered by Virginia courts in a property division case include non-monetary contributions, contributions to a partner's education, economic misconduct and a list of other factors defined in Virginia law. This page summarizes the most important aspects of property division laws in Virginia.
| ? Community Property | |
| ? Only Marital Community Property Divided | |
| ? Statutory List of Factors | |
| ? Contributions made within a marriage. Such as | |
| ? Economic Misconduct | |
| ? Contribution to Education | |
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Virginia divides marital assets via equitable distribution, which means that the court attempts to divide marital assets in a fair and equitable manner between the spouses, taking multiple factors into account in order to determine the equitable distribution for each spouse.
Under Virginia law, marital property is that which is acquired or is a direct result of the labor and investments of the parties during the marriage is subject to equitable division. Equitable division does not mean marital property is divided equally, it is divided in manner that results in a fair or equitable result for each spouse.
Courts will consider each party's age, health, earning capacity ned as property acquired by one spouse prior to the marriage or property acquired by a spouse intended not to be considered marital property is not subject to equal division.
Alternatively, non-marital property or property defined as property acquired by one spouse prior to the marriage or property acquired by a spouse intended not to be considered marital property is not subject to equal division.
Virginia Property Division FAQ
Virginia is NOT a community property state, which means that marital property is not automatically divided 50/50 between the spouses in a divorce case.
Instead, Virginia judges determine property division under the equitable distribution policy, which means that the court divides property between the spouses in what is believed to be a fair distribution, based on each individual's contributions to the marriage and their earning ability and needs following separation. Factors such as one spouse's economic misconduct may also be considered.
In practice, judges in an equitable-distribution state like Virginia often divide marital property with approximately 2/3 of marital assets going to the higher-earning spouse, and 1/3 going to the lower-earning spouse.
In the state of Virginia, only property or assets considered "marital property" or "community property" are subject to division in a divorce case. This means that property owned by either spouse prior to marriage is exempt, as are certain individually-owned assets acquired during the tenure of the marriage.
Some individual property may be considered to be "partial community property" or even ruled to be fully community property due to contributions by the other spouse or co-mingling of assets, which may lead to complicated property division situations.
Virginia law allows courts to consider economic misconduct of a spouse as a factor in determining equitable property division. Economic misconduct generally means dissipation of assets, which is the legal term for the wasting or loss of marital funds or assets by a spouse through means like excessive spending, gambling, fraud, etc.
If a spouse is found to have dissipated marital funds in a way that injured the other spouse, the court may take punitive or restorative action by awarding a higher percentage of divided property to the injured spouse.
Virginia statute does provide for court consideration of a spouse's contribution to their partner's education during the course of a marriage. If one spouse supported (financially or otherwise) the other and enabled them to obtain education or other training that increased their earning power, these contributions can be considered by a Virginia judge when determining how to divide marital property.
A prenuptual agreement, or pre-nup, is a binding legal contract signed by both spouses prior to getting married in Virginia. A prenup containing a property division agreement can take precedence over Virginia's property division laws by establishing what is considered as separate vs marital property, as well as agreeing on how finances will be structured during the marriage and divided in the event of a divorce.
The existance of a valid prenuptual agreement can prevent a Virginia court from having full reign to determine how assets are divided between the spouses, and instead allow them to be divided in a way agreed to by both spouses prior to the event.
A Virginia property division order is a court order issued by a court order issued by a judge, describing how property is to be divided between spouses following a divorce. A property division order is a binding legal obligation, and failure to comply with the terms in full by either spouse can result in being charged with contempt of court. If your spouse is not complying with a property division order, you can consult a family lawyer to discuss potential legal avenues.
Dower and curtesy abolished unless vested before January 1, 1991 (§64.1-19.2)
Section(s):
VA. CODE . ANN. § 20-107.3
The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:
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, specifically including any ground for divorce under the provisions of subdivision A (1), (3) or (6) of § 20-91 or § 20-95;
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;
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; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
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