How Are Properties Divided in a Divorce?
When you are going through a divorce, one big issue to settle will be dividing your properties. You should first understand the basic legal rules which can help you through the process.
The first question is whether you and your spouse can agree amicably on how to split assets and debts rather than have a judge decide it for you. The reason is that the cost of divorce increase tenfold when you go to trial.
As long as you both agree, you and your spouse are free to come up with any way of dividing your assets.
The rules on property division in divorce are based on state law. In Virginia, property is divided into three different categories for purposes of divorce. Both real estate and personal property may be considered marital property, separate property, or part marital property and part separate property depending on how and when it was acquired and used.
Marital property includes any money, assets or property earned or acquired during the marriage. It can include real estate, motor vehicles, stock investments, pensions, furnitures, and retirement accounts. In addition, any separate property that was brought to the marriage by one spouse but has been used by both the spouses during the marriage can be considered marital property.
Separate property includes property that one spouse had prior to marriage; property that is given to one spouse as a gift or inheritance before or during the marriage; and property that is purchased during marriage using only money that the spouse had as separate property prior to marriage or money used from a gift or inheritance.
In Virginia, separate property is not divided in divorce. Each spouse gets to keep the full amount of his or her property.
Part Marital Property and Part Separate Property
Some property does not belong fully under marital property or separate property. For example, one spouse may have brought a real estate – a house – as a separate property but during the marriage, the house increased in value. The increase in value may be considered marital property in some circumstance.
If the spouse claiming partial marital property is successful, the increase in value may be considered his or hers during the divorce. Then the house itself will remain in the sole possession of the spouse who bought it.
Equitable Division of Marital Property
As stated earlier, you and your spouse are free to come up on your own agreement about how to divide your properties. However, if you cannot do it without the court’s help, the court will divide your property and classify them as marital property or separate property then value each of them.
Equitable Division is a process when the judge divides properties in divorce. Basically, this means that the spouses’ assets and debts will be distributed between them in a way that the judge believes is equitable and fair given the circumstances of the case.
In Virginia, marital property is not divided equally. The court will make an equitable distribution of the property. It will be fair rather than equal. The court may consider the following factors when dividing marital property:
1. The income earning potential of both spouses
2. Each spouse’s monetary and non-monetary contributions to the family
3. Each spouse’s monetary and non-monetary contributions to acquiring the property
4. How, when, and why the property was acquired
5. How long you the spouses married
6. Each spouse’s age and health
7. Each spouse’s economic circumstances
8. Any debt or liabilities
9. The tax consequences of the property distribution
10. Whether either spouse did anything to decrease the value of marital property (wasted assets)
11. Whether it makes sense for one spouse to keep a certain property, like a business or a house
12. Other factors that the court determines relevant to the distribution of property
In a Virginia divorce, marital debts are also similarly divided.
Prepare for Property Division
Before or after hiring a Virginia Divorce Lawyer, you should still need to take some preliminary steps on your own regarding the division of your properties. The following steps are:
1. Make a list of your assets.
Gather the complete list of all your assets. Be truthful and transparent about the list because if your spouse later find out that you did not disclose everything in the list, the judge could reinvestigate the case even if it is already final.
2. Make a valuation of all your properties.
Start with a fair market value when figuring out the worth of each asset. A fair market value is the value of an asset if you sell it in an open market today, not what you paid for it. To find the fair market value of a property, just search it online or hire an appraiser.
3. Make an identification if the property is marital property or separate property.
If you claim that a property is separate property, you have to prove it by providing documents, evidence and sources.
Property Settlement Agreement (PSA)
A Property Settlement Agreement is a contract between spouse that details the terms of how they will move forward with their lives after the divorce. A signed PSA will be the biggest part of the divorce.
Once you have written and signed your property settlement agreement, you need to submit it to a Virginia family court judge for approval, along with all the other divorce documents.
If you need help with a family law matter, Virginia Family Lawyer Attorney Tori Bramble can provide you with the professional advice you need to take an educated decision. The decision you make during your divorce will help shape your future, especially when it comes to division of properties. It is essential to look after your own interest even if the property division process during divorce is quite difficult. Schedule a consultation with Attorney Tori Bramble today by calling (540) 628-7340. You may also visit our website at www.bramblelawfirm.com for more details.