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Equitable Distribution

Upon decreeing the dissolution of marriage or divorce, a court in Virginia may determine the ownership and value of all property of the spouses if either party so requests. The goal of Virginia’s equitable distribution system of property division is the fairly divide the marital assets with respect to the contributions of each spouse. Like spousal support, the court’s inquiry into distribution of property is twofold: first, the court must classify all property and determine the rights and interests of each spouse in the property; and second, after determining that an award of property is appropriate, the court must determine the appropriate award amount based on the statutory factors listed in the Virginia Code section.

Classification of Property

Virginia is considered a “dual property” equitable distribution state, which means that Virginia courts will allocate only joint property of the marriage, not the separate property of either individual. “Separate property” is defined under Virginia law as all property acquired by either party before the marriage was entered or after the parties separate, or any property acquired by one party during the marriage if it was given by will or as a gift. Conversely, “marital property” is defined under Virginia law as all property titled in the names of both parties in whatever capacity, and all other property acquired during the marriage if not separate property as defined above. Thus, insofar as property such as pensions and retirement plans were earned during the course of the marriage, they are presumed to be marital property under Virginia law.

Importantly, classification of property as marital property as opposed to separate property does not mean that both parties have an equal, 50% interest in the property. Instead, a court’s classification of property as marital property merely defines the realm of property for division by the court. That is, separate property is out of the hands of the court, but marital property can be divided and distributed by the court as it sees fit.

Determining the Appropriate Award

Virginia courts are not required to divide marital property equally; instead, the court is free to divide the property in whatever percentage it deems fair and equitable. In considering the appropriate amount of any monetary award or apportionment of marital property or debts, the Virginia courts will balance factors listed in the Virginia Code section. These factors include:

The contributions of each party to the well-being of the family;
The duration of the marriage;
How and when specific items of marital property were acquired;
The debts and liabilities of each spouse; and
The tax consequences to each party.

Because litigation of marital assets can be time consuming and costly, many parties attempt to reach agreement regarding marital property prior to seeking a divorce decree in court. Whether you plan to litigate marital property disputes or reach a consensus with your spouse, seeking an experienced attorney and counselor for assistance is undoubtedly wise.