Virginia law states that most property and debt acquired post-separation is to be classified as separate property (non-marital). Judges are not permitted to transfer, to the other spouse, separate property. It is usually best, therefore, for parties to clarify what they have, in terms of their property and debt, at the time of separation.
How is property divided in a Virginia divorce?
Under Virginia divorce laws, courts must follow the principle of equitable distribution in the division of marital property. Throughout the divorce process, couples have various opportunities to agree between themselves on a fair division.
Are pensions considered marital property in a Virginia divorce?
In Virginia, pensions and other retirement accounts are considered marital property if they were accumulated during a marriage. These funds are subject to equitable distribution laws in a divorce. Monies earned either before a marriage or after a separation are considered separate property.
What is a property settlement agreement in divorce?
A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children, and child support.
What are the divorce laws in the state of Virginia?
Divorce Laws in Virginia 1 Beginner’s Guide to Virginia Divorce Laws. If you want to end your marriage in Virginia, there are several laws you need to know about before starting the divorce process. 2 Assets and Debts. ... 3 Spousal Support and Child Support. ... 4 Custody and Visitation. ... 5 Divorce Process. ... 6 Other Divorce Issues. ...
Is Virginia a 50 50 state in a divorce?
Virginia is not a community property state. That means that there's no automatic 50/50 split when you're getting divorced and you're trying to figure out what to do with your marital assets. A marital asset or marital property is anything that was acquired during the marriage.
What is a wife entitled to in a divorce in Virginia?
What is a wife entitled to in a divorce in Virginia? Neither party in the marriage is automatically entitled to anything until it is determined by the court based on their unique situation. Division of property is also determined by the court based on each spouse's financial situation and assets.
What is considered marital property in the state of Virginia?
Marital property is defined as all jointly-owned property and all other property, other than separate property, acquired from the date of the marriage to the date of separation.
How do I protect my inheritance from divorce in Virginia?
How Can One Party Protect Their Inheritance? So, to protect their inheritance from becoming hybrid property and subject to division by the court, a person would need to keep the funds in a separate account away from any marital funds. They would not use the inherited funds for the benefit of marital property.
Who gets the house in a divorce in VA?
Both Spouses Own the Home and Want to Sell It Once the home is sold, the court might split the proceeds equally between each spouse. However, in certain circumstances, the judge might decide to award a more significant share to one spouse over the other.
How much is alimony in Virginia?
The formula stated in § 16.1-278.17:1 is: (a) 30% of the gross income of the payor less 50% of the gross income of the payee in cases with no minor children and (b) 28% of the gross income of the payor less 58% of the gross income of the payee in cases where the parties have minor children in common.
How long do you have to be married to get alimony in Virginia?
If you've been married 1-5 years, the presumption is that you will not receive spousal support. If you've been married 6-18 years, the presumption is that you'll receive support for half the length of the marriage. If you've been married for 19 or more years, the presumption is that you'll receive support permanently.
Can a spouse kick you out of the house in Virginia?
But to give you a general answer, generally spouses cannot evict or kick out the other spouse, because they are not tenants, but spouses, and they have a right to be in the marital residence.
Who should file for divorce first in Virginia?
No court will favor your submissions simply because you filed them before your spouse or ex-spouse. However, the answer is “yes” for two important reasons: (1) filing first means you can set the pace of the litigation, and (2) you get to speak first and last in the event your case goes to trial.
How long do you have to be married to get alimony in Virginia?
If you've been married 1-5 years, the presumption is that you will not receive spousal support. If you've been married 6-18 years, the presumption is that you'll receive support for half the length of the marriage. If you've been married for 19 or more years, the presumption is that you'll receive support permanently.
How does spousal support work in Virginia?
Alimony can be paid either as a lump sum payment or as periodic payments. Payments can be set for a specific number of years of for an unspecified duration. The support ends automatically upon death of either spouse or if the spouse receiving support remarries or cohabitates in a marriage-like manner.
Is emotional abuse grounds for divorce in Virginia?
Physical, emotional, or sexual abuse between two people in a marriage may form the grounds for divorce in the Commonwealth of Virginia.
Do you have to be separated for a year to get a divorce in VA?
In the state of Virginia, it is required that you live apart from your spouse for at least a year before you can file for uncontested divorce (six months if you have no minor children as well as a signed separation agreement). Legal separation is defined by physical separation, as well as the intent to be separated.
What Is Included In A Property Settlement Agreement?
In most cases, the property settlement agreement can be broken down into several sections. Some common issues that are addressed in the PSA include:
Parenting Time and Child Support
This section outlines a parenting time schedule and dictates how the parents will share childcare responsibilities, including decision-making authority and daily care for the child.
Alimony
Another important section of a PSA is alimony or spousal support. This section describes the amount of support that one parent must pay the other and how long these payments will continue.
Date of Separation
The PSA will also make a note of the date on which the couple started living “separate and apart.”
Taxes
The PSA will also dictate how tax benefits and burdens shared by the couple will be distributed amongst the two parties. This includes:
Contact A Property Settlement Agreement Attorney in Virginia
Contact the Virginia Beach divorce attorneys at Invictus Law today for a consultation if you have questions about the divorce process or require legal assistance while drafting your property settlement agreement.
How long does a spouse have to respond to a divorce in Virginia?
In Virginia, after a spouse has filed a divorce complaint with the court and served their spouse with papers, the other spouse has 21 days to respond to the complaint. A defendant who does not respond in a timely manner is considered in default, but prior to granting a final judgment the court may grant relief to a defendant who can show good cause as to why they were late in responding.
What is considered to be considered when dividing marital property?
The following factors are required to be considered in dividing marital property: The contributions, monetary and non-monetary, of each party to the well-being of the family.
What is the definition of marital property?
The use or expenditure of marital property by either of the parties for 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.
What is the meaning of "liquid" in a divorce?
The debts and liabilities of each spouse , the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities. The liquid or nonliquid character of all marital property. The tax consequences of dividing marital property.
When does spousal support end?
Payments usually end upon death, remarriage of the spouse receiving the support or if the recipient cohabits in a marriage-like arrangement for a year or more. Courts usually award this type of support in marriages of long duration or when a spouse has limited options and abilities to re-enter the workforce.
How to protect inheritance?
Another way to protect an inheritance is to have a spouse sign a post-nuptial agreement whereby he or she agrees that the inheritance belongs to one spouse only, no matter how it is used in the marriage .
How is custody determined in Virginia?
Custody is determined by a number of factors in Virginia’s Juvenile and Domestic Relations District Courts. A parent may be awarded sole custody or a child which gives exclusive rights for physical custody and decision making for the child. The other parent can seek visitation rights in this instance.
What is a divorce in Virginia?
A divorce from bed and board is a partial or qualified divorce under which the parties are legally separated from each other but are not permitted to remarry.
What is marital property in Virginia?
"Marital property" consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. "Separate property" is property owned by one party prior to the marriage, property acquired after the parties have separated, or inherited property and/or gifts to one party from a third person. Where "marital property" and "separate property" are mixed together or where the value of "separate property" is increased through the active efforts of either party during the marriage, then such property may be classified as "marital property" or as "part marital and part separate" property. In general, debt is considered “marital debt” if it is in the joint names of the parties and was incurred before the date of the last separation of the parties or, for debt that is in only one party’s name, if the debt was incurred after the date of marriage and before the date of the last separation of the parties. On the other hand, “separate debt” is debt incurred in only one party’s name before the marriage or after the date of the final separation of the parties. In determining whether a debt is marital or separate, the court may also consider the reason a debt was incurred.
What happens if one spouse leaves?
Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.
What defenses does a guilty spouse have?
These are very fact specific and should be reviewed with an attorney. c. Conviction of a felony.
How does equitable distribution work in Virginia?
Under Virginia's system of "equitable distribution," the court is not required to divide the marital property or marital debts on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well- being of the family and to the acquisition and care of the marital property . Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party's pension or retirement plan that accumulated during the marriage.
Why are annulments not granted?
An annulment cannot be granted merely because the marriage is of short duration, and legal annulments are normally not granted for "religious" reasons. 2.
What happens when a marriage ends in divorce?
Given the percentage of marriages that end in divorce, anyone could be affected in some way by a separation or divorce . Dissolving a marriage often involves property rights and financial matters, and can raise complicated legal problems, especially when children are involved. The Family Law Section of the Virginia State Bar prepared this ...
What is the law for dividing marital property in Virginia?
Under Virginia divorce laws, courts must follow the principle of equitable distribution in the division of marital property. Throughout the divorce process, couples have various opportunities to agree between themselves on a fair division. However, if the divorcing spouses cannot resolve property division issues on their own, ...
What is considered property in divorce?
In a divorce, the most common forms of property divided are real property such as the family residence, personal property such as jewelry, and intangible property such as retirement benefits, dividends, and income.
What is equitable distribution in Virginia?
Equitable Distribution in Virginia. The state of Virginia uses the equitable distribution system to divide marital assets in a divorce. Note that this only comes into play if a couple is unable to come to an agreement outside of court. When this occurs, the judge decides how assets are divided between the spouses.
What is marital property?
In general, marital property refers to property that either partner obtained or earned during the course of the marriage.
How to divide property?
In order to divide property, the court must classify any disputed property as marital property or separate property, and assess the value of the property , typically using the information provided by the couple. After the court values all property, it will divide it on the basis of various factors, such as:
What happens after the court values all property?
After the court values all property, it will divide it on the basis of various factors, such as: The contributions of each spouse, both monetary and non-monetary, to the welfare of the family as well as to the acquisition, upkeep, and maintenance of the marital property during the marriage. The duration of the marriage.
Can a judge increase a spouse's share?
On top of this, a judge can also increase one spouse’s share if the other spouse did something to reduce the value of the marital property. For instance, a jilted spouse cannot go on a shopping spree or purposefully damage the family vehicle without having to pay for this loss later on.
What happens if you don't agree to property division in Virginia?
If the parties have not agreed to the terms of property (and debt) division, the judge in the divorce will make the decision. The Virginia statute that governs property division is easily among the most complex of comparable laws in other states. In this article, we will discuss the main provisions, but an attorney should be consulted to explain the law in all of its detail as it would apply in any given divorce, especially when a couple has substantial worth, or when the particular assets are unique or difficult to characterize.
What is the standard for division of property and debt?
Broadly, the standard for division of both property and debt is equitable distribution, based on principles of fairness. This is not necessarily a split into two equal halves, but a fair division considering a list of factors and anything else relevant to fairness. Some of the listed factors:
Can a married couple negotiate property division?
As a practical matter, regardless of what the law says, a married couple may negotiate the details of property division in a binding agreement. It is important to speak to an attorney about the classification of each asset and to determine a fair value before agreeing to division and future ownership. This property settlement normally becomes part of the final order of divorce in court.
What does it mean when a party appreciates how marital property was acquired or maintained?
The parties may appreciate how marital property was acquired or maintained and have equitable notions about how that property should be divided, notwithstanding what the law may provide.
What is a PSA in Virginia?
Virginia Property Settlement Agreements (“PSA”), also called Separation Agreements, are typically omnibus, formal legal documents drawn to address the major tenants of an approaching divorce proceeding. Ideally, these post-marital agreements, tackle all rights and obligations arising from the parties’ marriage to one another.
What are the rights of a married couple after marriage?
Those rights include, among other things, custody and visitation, child and spousal support and property division. Married parties are free to contractually agree upon a resolution of their marital obligations at any time.
How to get a property division settlement?
There are two ways to reach a property division settlement when going through a divorce. The first is negotiating terms in private or with legal assistance. The second is by going to court. The first option is ideal, as it gives you and your spouse a greater say in the overall settlement terms. If you go to court, a judge will get the final say, and you may not like the results.
What is marital property?
Any assets acquired during the marriage by either party is generally considered marital property. So, income, real estate, retirement accounts and furnishings — among various other things — qualify as marital property, regardless of which spouse paid for or into these things. There are a few exceptions to this, however. The following may still be separate property:
When marital property and separate property are commingled into newly acquired property resulting in the loss of identity?
e. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property . However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.
When marital property and separate property are commingled by contributing one category of property to another, resulting?
When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property , the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.
What is marital debt?
Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party's name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.
What is the burden of proof for a non-owning spouse?
For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.
How to transfer marital property?
As a means of dividing or transferring the jointly owned marital property, the court may transfer or order the transfer of real or personal property or any interest therein to one of the parties, permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property , or order its sale by private sale by the parties , through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition. All decrees entered prior to July 1, 1991, which are final and not subject to further proceedings on appeal as of that date, which divide or transfer or order the division or transfer of property directly between the parties are hereby validated and deemed self-executing. All orders or decrees which divide or transfer or order division or transfer of real property between the parties shall be recorded and indexed in the names of the parties in the appropriate grantor and grantee indexes in the land records in the clerk's office of the circuit court of the county or city in which the property is located.
When the separate property of one party is commingled into the separate property of the other party, or the?
When the separate property of one party is commingled into the separate property of the other party, or the separate property of each party is commingled into newly acquired property, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, each party shall be reimbursed the value of the contributed property in any award made pursuant to this section.
When separate property is retitled in the joint names of the parties, the retitled property shall be deemed?
f. When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.
Beginner’s Guide to Virginia Divorce Laws
Assets and Debts
- Marital Property and Division of Assets in Virginia
Virginia is an equitable distribution state and as such, the courts will attempt to divide assets in a fair and equitable way. This does not always mean that assets will be divided on a 50/50 basis. Only marital assets are considered in a division of assets. Marital assets are those accumulate… - Debts
Just as it is with assets in Virginia, debts must be classified as either marital, separate or a combination of both marital and separate so that proper equitable distribution can take place. Marital debts are defined as debts that were incurred from the date of the marriage to the date o…
Spousal Support and Child Support
- Alimony (Spousal Support) in Virginia
Spousal support can be awarded to either spouse in Virginia. Courts have discretion in determining the amount, duration and how the spousal support is paid. There are three basic types of support that can be awarded. Periodic payments for an undefined duration. Often referr… - Child Support in Virginia
Virginia courts initially calculate child support based on child support guidelines established by the state. To do this, the court will need to know each spouse’s monthly gross income, employment related daycare expenses, and monthly health care premium costs for each child. I…
Custody and Visitation
- Child Custody in Virginia
As it is in all other states, decisions regarding child custody in Virginia are always made with the best interests of the child in mind. Custody is determined by a number of factors in Virginia’s Juvenile and Domestic Relations District Courts. A parent may be awarded sole custody or a chil… - Substance Abuse
By itself, substance abuse is not one of the grounds that can be used for divorce in Virginia. However, it could lead to other recognized grounds such as domestic violence which falls under the grounds of cruelty. Substance abuse will also have an impact on child custody issues as wel…
Divorce Process
- Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce. The marriage is terminated at that point. Bifurcation means that the financial aspects of the divorce such as child custody, visitation, chil… - Disclosing Assets
In Virginia, both parties in a divorce are required to make a full disclosure of their assets and debts that existed at the date of separation. This includes both marital and non-marital property. If there are disagreements about what constitutes a marital vs. non-marital asset, the burden of pr…
Other Divorce Issues
- Domestic Violence
Domestic violence (cruelty) is one of the grounds that can be cited for getting a divorce in Virginia, but it is secondary to making sure that you seek immediate help if you are in a violent marriage. To be granted a divorce based on the grounds of cruelty, you must be able to show that your spo… - Health Insurance
Once a divorce has been finalized in Virginia, a spouse who receives health care coverage through the other spouse’s plan will no longer be eligible for coverage. While a divorce is pending, the court may enter an order that will require for one spouse to continue to provide health coverage …