Legal Professionals of Hirsch & Ehlenberger

The difference between marital and separate property in Virginia

On Behalf of | Mar 5, 2020 | Divorce

Virginia is among the majority of states that utilize the equitable distribution standard for splitting up assets and debts during divorces. This means the courts will take a close look at your family’s financial and employment circumstances before deciding the fairest and most reasonable way to split both the assets and the debts from your marital estate.

The process of determining what is marital and separate property can have a drastic impact on who retains what in a Virginia divorce. Understanding how the courts differentiate between marital and separate property can help you set your expectations for the asset division process and ensure that you advocate for the best possible outcome given your family’s circumstances.

Marital property generally includes anything earned or acquired during the marriage

When you get married, you legally bind yourself to another person in a way that impacts everything, including your financial and ownership rights. Unless you go into the marriage with an ironclad prenuptial agreement signed by both parties, the chances are very high that any assets you acquired during the marriage will be subject to division in the event of a divorce.

Regardless of who earns more money, the total income for the household gets shared between both spouses, as do any other assets you acquired using that income. Non-financial assets, including employer-sponsored benefits and pension benefits that will only become available after a certain age, are also typically shared benefits when it comes to the amount accrued or earned during the marriage.

What remains separate property in a Virginia divorce?

Separate property generally includes assets acquired prior to marriage or in other, limited circumstances. The property and savings that you owned prior to marriage were your separate property, and those assets usually remain separate unless you commingle them with marital assets.

Adding your spouse to your bank account, for example, could turn previously separate funds into marital funds. Similarly, depositing separate assets into marital or shared bank accounts could also result in commingling that leaves those assets vulnerable to division in a divorce.

Assets you owned prior to marriage and gifts that you received from someone outside of your marriage, such as a parent or sibling, typically remain separate property, as does an inheritance left to only one of the two spouses. In both of these cases, however, commingling can potentially endanger separate assets and leave them vulnerable to claims by the other spouse.

You can have a better estimate of what your marital assets’ worth and what a reasonable share could be yours if you review the date that you acquired different assets and what funds were used for their purchase.


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