When parties file a complaint for divorce, they often ask the court to determine a myriad of issues: spousal support, child support, child custody and visitation, and the division of property. In Virginia, courts will decide how to divide the parties’ property through a process called “equitable distribution.”
The first step in equitable distribution is to classify all property as separate, marital, or hybrid. Generally, marital property is any property that is acquired during the marriage, whereas separate property is any property that was acquired by a party (a) before the marriage, (b) after the parties separated or (c) during the marriage from an inheritance, gift from a third party, or other source outside the marriage. Hybrid property is a mixture of the two: it is separate property that has been commingled with marital property, making it part marital and part separate. … Read More »
It is a common story. You get married. You and your new husband or wife buy a beautiful new home. Everything is grand.
But then everything, gradually, over time, becomes… less grand, downright miserable, in fact. You separate. You contemplate divorce. You visit an attorney.
The question arises: what happens to the money that you (or your spouse) used to make the down payment? What happens to that money when you divorce?
There is a general rule that applies to this scenario under Virginia law. Just as background, real estate, when purchased during the marriage, is, by default under Virginia law, marital property regardless of how the real estate is titled. That is, the real estate can be titled in both of your names or solely or in the name of one party. It makes no difference to the question of whether or … Read More »
If you are involved in a contested divorce in the Commonwealth of Virginia, the court will eventually set a date for an equitable distribution trial. At that trial, you and your spouse will have the opportunity to present proposals to the court for distribution of the marital property and debts. Occasionally, one party in an equitable distribution hearing will allege that the other has misused or deliberately disposed of marital property to purposefully deprive the other party of his or her share. This behavior is commonly known as “marital waste” or “dissipation of assets,” and the court has authority to consider such behavior in making an equitable distribution award.
But how does the court know when marital waste was purposeful? The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be … Read More »
A problem one occasionally encounters in divorce practice is the spouse who is unwilling, out of selfishness or greed, to disclose his or her actual assets and earnings. Where a spouse is being dishonest, it is necessary to resort to alternative measures to uncover this information.
The motivation for a spouse to lie may seem obvious. Some spouses believe that the income they earn should belong solely to them, especially where that person has his or her own business or receives income from a family source, such as a trust. By hiding assets or deferring income, a spouse can reduce his or her child support, spousal support, and the share of marital property that would have to otherwise be equitably divided between the parties.
You cannot always tell for sure whether your spouse is lying. However, certain circumstances raise good reason to … Read More »
If you have reviewed the military divorce sections of our website and blog, you should be familiar with the basics of the division of military retired pay pursuant to a divorce in Virginia. In short:
Your disposable retired pay, meaning your gross military retired pay minus any deductions for disability, is divisible under both federal and state law.
Under Virginia law, your spouse can receive up to fifty percent of the “marital share” of your retired pay, the marital share being defined as the portion that was earned during the marriage before separation.
The Defense Finance and Accounting Service (“DFAS”) can pay your spouse his or her portion of your military retired pay directly where your marriage overlapped with 10 years or more of your military service.
What we have not discussed in detail is how you can structure your military retired pay award … Read More »
NFL star and 2006 first overall draft pick Mario Williams has filed suit against his former fiancée seeking recovery of the 10.04 carat diamond engagement ring he gave her in February 2012. Williams claims that his ex, Erin Marzouki, never intended to marry him, and that she had promised to return the ring if the engagement ended. The two-time Pro Bowler brings this claim under the “conditional gift rule”—the idea that a gift is not truly given until something else happens.
The thinking here is that the engagement ring is given “on the condition” that the marriage occurs. If the parties marry, the gift is completed and the ring becomes the receiver’s separate property. If the parties don’t marry, at least in Texas, the court would look at the reasons why the marriage didn’t happen. In Virginia, however, the court is … Read More »
Virginia 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 … Read More »
When a couple has the misfortune of proceeding toward divorce, often the marital home is the most valuable property to address. There are many things to consider when navigating this process in Virginia, and here are a few of the most important questions that must be answered.
How is the home titled and who is listed on the mortgage?
This will help to determine the options that are available for you. For example, if both parties are listed on the mortgage, and if one wants to keep the home, he or she will need to qualify for a refinance to remove the other’s name and take on the debt in full. And if the home is jointly titled, the party relinquishing it will need to execute a quitclaim need, special warranty deed or general warranty deed for the other.
Is the home marital, … Read More »
The division of marital property (property acquired during the marriage that is not separate property) can be a major hurdle in the divorce process. Examples of marital property include retirement funds, automobiles, furniture, and most notably, the marital home. The marital home is often a point of special contention. Parties fight over the marital home because they attach sentimental value to it, because they want to maintain stability for their children, and/or because of other financial considerations. For example, a party may want to hold on to the home because its current value is not necessarily indicative of its future value (assuming, as is often the case today, a bad housing market).
In the unlikely situation that your contested divorce goes all the way to an equitable distribution trial, Virginia Code Section 20-107.3 requires that the court consider a variety of … Read More »
Are you a servicemember who is contemplating a divorce or separation from your spouse? For most servicemembers, the failure of a marriage is one of the most stressful experiences of their lives. However, divorce does not have to be difficult, and your chances of working out an amicable separation agreement are greatly increased if you are served by competent legal counsel and educated as to the applicable law of divorce and separation in your state of residence. If you are a servicemember and live in Virginia, here is what you need to know before you begin.
I. Divorce Grounds. There are two different types of divorce in Virginia. The first, a divorce a mensa et thoro (from bed and board) does not entirely dissolve the marriage, but establishes that a husband and wife are legally separated from one another. Bed and board … Read More »