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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:
Marital Property vs. Separate Property
Virginia defines separate property as:
Virginia defines marital property as:
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:
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:
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:
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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