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Virginia Property Division
Property Distribution Laws in Virginia

In Virginia the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the Domestic Relations Court within the Judgment of Divorce.

Factors in Equitable Distribution

Virginia is an equitable distribution state. It is also a dual classification state, and the appreciation of separate property is separate. When the spouses cannot reach a settlement, the Domestic Relations Court distributes the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, or even half, but rather what the Domestic Relations Court considers fair.

According to the Virginia Code - Title 20 20-107.3, when dividing the property, the court considers:

  • the contributions, monetary and non-monetary, of each party to the well-being of the family;
  • the contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  • the duration of the marriage;
  • the ages and physical and mental condition of the parties;
  • the circumstances and factors that contributed to the dissolution of the marriage;
  • how and when specific items of such marital property were acquired;
  • 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;
  • the liquid or non-liquid character of all marital property;
  • the tax consequences to each party;
  • the use or expenditure of marital property by either of the parties for a non-marital 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
  • such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Marital Property vs. Separate Property

Virginia defines separate property as:

  • all real and personal property acquired by either spouse before the marriage;
  • all property acquired during the marriage by inheritance or gift from a source other than the other spouse;
  • all property acquired during the marriage in exchange for or from the proceeds of the sale of separate property, provided it is maintained separately.

Virginia defines marital property as:

  • "property acquired by either party during the marriage that is not separate property;
  • property that is part marital and part separate; and
  • property whose title is held by both parties (however, this still may be proven to be separate or partly separate if it can be traced accurately and fairly to separate property).

Property Defined

Property is either marital or separate, and it includes assets and liabilities. he court determines the ownership of all "real and personal property." The term property includes a wide variety of assets, including jewelry, the marital residence, other real estate, bank or credit union accounts, furniture, paintings or other art work, automobiles, business interests, and other types of property managed by both or either spouse during the marriage. Most future income and future assets, except for pensions, are not included in equitable distribution of property.

Valuing and Dividing Property

In dividing property, the court:

  • determines the spouse who owns the property, and it sets its value;
  • classifies property as marital or separate, or partially each; and
  • considers the rights, interests and equities of the parties.

The court decides who gets what, and it can also order either spouse to pay a monetary award to the other party. Property that is part marital and part separate - such as a house that the husband owned before he married the wife who helped pay the mortgage - can be distributed.

The Marital Home

In Virginia, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) from are deducted the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

In Virginia vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Virginia the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)s, 403(b)s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employees salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Virginia if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, and how such benefits should be paid.

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