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Determining whether an asset is separate or marital in a divorce

On Behalf of | Jul 12, 2018 | Property Division


Many people in Virginia will spend a lifetime accumulating a wide variety of assets. Some of the assets may be financially valuable, while other assets hold more sentimental value. Some of these assets were obtained before a person got married, while others were obtained during the course of the marriage. However, the classification of property as either marital or separate is essential when it comes to property division in a divorce. This is because separate property will be retained by the party that owns it, while marital property will be divided between the spouses.

In Virginia, marital property is that which is acquired from the day the couple was married until the day the couple separated. Both parties jointly own marital property, even if a deed or account is in one party’s name only. In Virginia, marital assets will be divided via “equitable distribution.” This means division will be fair, but may not necessarily be equal.

Separate property is that which a party acquires before getting married. Inheritances to one spouse only or gifts given to one spouse only by a third party may also be considered separate property as well. However, inheritances and gifts must be kept separate from marital assets.

For example, if they are placed in a joint bank account or used to purchase marital assets, they will have “commingled” with the marital assets and will lose their separate status. In addition, the increase in value of a separate asset that takes place while the couple is married may be considered a marital asset to the extent that marital assets were used to improve the asset or each spouse took personal efforts that led to a substantial increase in the value of the asset.

As this shows, determining whether an asset is separate property or marital property is an essential component of property division in a divorce. Both parties may feel very strongly about what assets they should be awarded. While some parties are able to negotiate a property division settlement out-of-court, others will need to turn to a judge to make these crucial decisions. In either case, it is important that both parties understand how the law applies to the facts of their unique situation, so they can make informed decisions about property division and other divorce legal issues.

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