Separate Property in Virginia Divorce

Posted on March 14th, 2013, by James Livesay in Divorce, Family Law. 2 comments

The Classification Of Separate Property In Virginia DivorceVirginia is an equitable distribution state, meaning that the court has the authority in your divorce suit to classify the property of the parties as separate, marital or hybrid, to distribute any jointly owned marital property between the parties, and to grant a monetary award to either party to ensure that the division of marital property is fair and equitable.

The law of equitable distribution is complex, and not every detail will be addressed in this blog post. The purpose of this post is instead to set forth a few simple principles to help you determine what property will be off-limits to your spouse in your divorce case. In other words, what do you get to keep? What is your sole, separate property not subject to equitable distribution?

Generally speaking, the following kinds of property will be classified as separate in Virginia:

  • Property acquired before the marriage;
  • Property acquired after separation;
  • Inherited property or property received as a gift from someone other than your spouse;
  • Property purchased during the marriage using money from the sale of separate property;
  • Property acquired during the marriage from the exchange of separate property;
  • Income received from separate property; and
  • Capital gains, or increases in the value of separate property.

Please keep in mind that there are exceptions to these rules.

For example, property obtained with marital funds is usually considered marital, even if it is acquired after separation. Therefore, if, after your separation, you open a bank account in your own name using funds from a joint bank account, you should not expect to keep your new bank account free from equitable distribution.

Similarly, there is an exception for property purchased during the marriage from the sale or exchange of separate property. Under Virginia law, such property will be considered marital if you do not maintain it as separate property. This effectively imposes a “segregation” requirement, meaning that to ensure your property will be kept separate upon divorce, you should see that it is not commingled with marital property during the marriage.

Once separate property is commingled, then you will have the burden of proof to show that some portion of the commingled property is directly traceable to the separate property. You must also show that the property was not intended to be given to your spouse as a gift. Even then, you are out of luck if the court cannot determine the exact portion of such commingled property that is separate.

Finally, income received from, or any capital gains on, separate property may be classified as marital to the extent that the income or capital gains are due to the personal efforts of your spouse. In other words, if your spouse has worked to produce income from your separate property or to increase its value, he or she can claim a portion of the income or increase in value as marital property.

One final point to remember is that it is up to the judge in your case to classify your property as separate, marital or hybrid, and these classifications are findings of fact. If you believe the judge made a mistake, your burden on appeal would be to show that the judge’s decision was plainly wrong or unsupported by the evidence. This imposes a significant burden where the law is not clearly on your side.

To ensure the law is on your side in regard to the classification of your separate property, it helps to have the advice of an attorney. If you are seeking or are a party to a divorce suit in Virginia, or have questions about the classification of separate property, please contact us to schedule a consultation. The divorce attorneys at Livesay & Myers, P.C. have years of experience in representing individuals in divorce suits involving equitable distribution and property classification in Northern Virginia, including the counties of Prince William, Fairfax, Fauquier, Stafford and Loudoun.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.


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