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Property Division: The Basic, General Guideline
(provided by Jeff Krause, Attorney at Law)
"50-50" division of "marital property" is the basic starting point for consideration of resolution of these matters; and, unless one or both spouse(s) wish to chance each spending several thousand dollars (i.e., in "five figures") to litigate the more sophisticated theories and approaches to division of marital property.
It is true that, in first enacting our "marital property" statutory provision in 1982, the Virginia legislature consciously declined to follow the lead of some other states, where it is expressly stated that there shall be a (rebuttable) "presumption" in favor of equal division. "Equitable distribution," based on consideration of numerous "factors" (including, especially, respective contributions to accumulation of the property) -- was the approach adopted. (15)However, even to consider these various "factors, " one has to start someplace; and it certainly seems that most judges expressly or implicitly use 50-50 division at least as the starting point for their determinations; and, often or usually, the ending point, also.
"Fault" (i.e., "cruelty, " desertion and/or adultery) which causes dissolution of the marriage is one of the "factors" upon which, the Virginia provision states, "equitable distribution" should be based. As noted above, though, "personal" fault (as opposed to "economic fault," which causes "dissipation" of ("marital property") -- seems, often, to be disregarded in property divisions by the Courts. And, notwithstanding popular notions to the contrary, at least if "the guilty party" chooses to fight for his or her rights (as opposing to bowing to quasi-extortionate threats, in a "voluntary" settlement Agreement) -- he or she is not going to "lose everything" simply as result of his or her "personal" misconduct. As noted above, even in the 1995 a case, which seems to have rejuvenated "personal fault" in connection with property division disputes, the issue was whether or not as a result of what the Judge found to be extremely egregious personal misconduct (adultery throughout the marriage, physical cruelty and a repugnantly domineering approach to family finances), the Court could award to the wife an extra ten percent (i.e., sixty percent) of the couple's marital net worth!
(15) For your convenience, a copy of the presently effective version of the Virginia equitable distribution statutory provision is attached hereto. Subsection "E" specifies the ten factors which the Court must consider in fashioning an "equitable distribution" award.
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