One of the things that weighs heaviest on the minds of individuals seeking a divorce is how the division of marital property works. Some states utilize “community property” regulations, while others employ the “equitable division” standard. What do these legal terms mean, and which model does the Commonwealth follow?
At Invictus Law, we know the answer to this question impacts how marital property gets divided in divorce in Virginia. We want to help you understand Virginia’s property division laws and how they may impact you during a divorce.
Community Property vs. Equitable Division
In most cases, two different models govern how marital property is distributed post-divorce. The two most popular models most states follow are the community property model and the equitable distribution system.
Under community property rules, all property accumulated by partners during marriage is typically considered community property. This property is divided equally between spouses upon divorce. In most cases, community property is anything either spouse earned during the marriage, including property acquired with those earnings. The exceptions to community property rules are assets acquired solely in one partner’s name before marriage or gifts or bequests given to the individual during the marriage.
The other model is the equitable distribution model. Under the equitable distribution system, courts split marital property between spouses “equitably” in the eyes of the law. Equitable does not necessarily mean equal or 50-50. It means fairly. For example, if one partner hides assets or spends lavishly before divorce, the court may award a more significant portion of the marital assets to the other spouse in the name of fairness. As in community property states, separate property acquired before marriage may not be considered marital property and would not be eligible for division.
Is Virginia a Community Property Commonwealth for Divorces?
No. Virginia does not follow community property rules. Virginia is an equitable division Commonwealth, meaning Virginia marital property laws require marital property to be divided “fairly” between spouses. Under the principles of equitable division, Virginia courts review all marital assets and debts, consider certain factors, then divide marital property in a manner they deem just or fair to both parties based on the facts of the case.
Generally, the only property that is not subject to division is separate property. Separate property is property acquired before marriage or during marriage as a gift or an inheritance. Ownership of a business started or acquired before marriage may or may not be considered separate property depending on the time and financial contributions each spouse may have poured into helping to sustain the business.
When evaluating “fairness” concerning the division of marital property, the courts may consider the following:
- Each spouse’s contributions, both monetary and non-monetary
- Each spouse’s earning capacity
- Each spouse’s age and physical and mental condition
- Each spouse’s debts
- The length of the marriage
- How and when each spouse acquired marital property
- Tax consequences to each spouse
The courts can also consider each spouse’s conduct. Wrongdoing, hiding assets, lavish spending, and other behaviors can influence how a judge divides the marital property.
Seek the Advice of an Experienced Virginia Beach Divorce Attorney Now
Are you concerned about the division of your marital property in your upcoming divorce? How do you know what’s fair? The family law attorneys at Invictus Law want to help protect you and everything you’ve worked so hard to achieve. We know you are worried about what’s ahead. We want to offer you compassionate support and valuable legal advice.
Contact us online or call our team today at 757-317-5125 to arrange for a confidential legal consultation to learn more about your options.
