Marital and Separate Property

Deciding upon an equitable division of a couple’s property interests first requires determining whether each asset is marital or separate property. Generally, assets acquired by a spouse before marriage are presumed to be that spouse’s separate property, assets acquired after the date of marriage and before the date of the parties’ separation are presumed to be marital property, and assets acquired by a spouse after the parties’ separation are presumed to be separate property. The law also recognizes separate property interests in assets acquired through inheritance or gifts.

Virginia law provides for hybrid assets, which are part-marital property and part-separate property. Our attorneys are experienced in identifying and resolving these complicated classification issues. We regularly work with forensic accountants and other financial professionals to help trace, prove, and preserve our client’s separate property interests.

Valuation of Marital Property

Marital assets that will be retained by one of the parties must be valued. In some cases, this may require the valuation of an asset on more than one date so that the increased value during the marriage may be accounted for in the division of the marital estate. Our attorneys are experienced with the various valuation methods used by the experts in the field, and we represent and defend our client’s interests when there is a dispute over the fair value of an asset.

How Marital Assets and Debts are Divided

The marital assets and debts are often equally divided and allocated between the parties. However, there is no presumption under Virginia law that favors an equal division. In certain circumstances, fairness may dictate an unequal division of the marital estate. The law requires consideration of several factors, namely:

  1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. The contributions, monetary and nonmonetary, of each party in the acquisition, care, and maintenance of such marital property of the parties;
  3. The duration of the marriage;
  4. The ages and physical and mental condition of the parties;
  5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;
  6. How and when specific items of such marital property were acquired;
  7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property that may serve as security for such debts and liabilities;
  8. The liquid or nonliquid character of all marital property;
  9. The tax consequences to each party;
  10. The use or expenditure of marital property by either of the parties for a nonmarital 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
  11. Other factors the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award are also important.

Effectively investigating, organizing, and presenting the evidence under these factors may help maximize our client’s share of the marital assets. We assist our clients in identifying the important factors in their cases and focus our resources on highlighting the facts that are most likely to impact the bottom line.

Under the statutory factors, earning the income used in the acquisition of marital property is important, but the law also recognizes the considerable value of the nonmonetary contributions of a spouse in caring for the parties’ children and maintaining their family home. In some cases, these contributions may involve the efforts of a spouse that have increased the value of a business during the marriage. Our attorneys will begin identifying these potential legal issues in the initial consultation and work with our clients throughout the divorce process to develop evidence to support their contributions to the marriage, both monetary and non-monetary.

Unlike many other states, Virginia recognizes marital fault as a factor in determining an equitable distribution of marital assets and debts. We understand that the facts and circumstances that caused the breakdown of the marriage are important, and we spend considerable time discussing these matters with our clients to determine how they may impact the division of the marital estate.

Retirement Accounts

Many married couples have spent years of their marriage saving for their eventual retirement. Sometimes, one spouse has contributed more than the other to retirement accounts in only one spouse’s name. Understandably, divorcing spouses are very concerned about how these hard-earned assets will be divided. Like with the non-retirement assets, Virginia law looks to when the retirement assets were acquired. In many cases, one or both spouses acquired some of their retirement savings before the marriage. The law allows for the separate portion of a retirement account to be segregated and not divided with the other spouse. Proving the separate portions of a retirement account may require acquiring documentation from many years ago and presenting evidence of what contributions were made after the date of the marriage, as well as passive increases in the stock market. The law also provides for the division of retirement accounts without incurring the taxes and penalties that would normally apply when funds are withdrawn from a tax-deferred retirement account, and it sometimes requires special orders or forms to make tax-free transfers. 

The divorce lawyers at Stiles Ewing Powers are skilled and experienced at handling retirement asset classification and division and ensuring the right documents are prepared to properly divide the retirement account between the spouses.