The difference between marital and separate property in Virginia

On Behalf of | Jun 8, 2021 | Divorce

Most of the big questions that people have going into a divorce revolve around the division of their property. People want to know if they can keep the house, if they will have to split their retirement account or if their spouse could claim a portion of their recent inheritance.

In theory, a divorcing couple can set their own terms either in a marital agreement or in a privately negotiated settlement as part of an uncontested divorce filing. However, many couples can’t sort out how to split their property up on their own. If they can’t, a Virginia family law judge applies the state equitable distribution standard to their marital property.

After reviewing the circumstances of the marriage, a judge will determine the best means of dividing their assets. Judges have a lot of room for interpretation during property division, so you may not be able to predict the exact outcome. However, you can figure out what assets are vulnerable to the division and which ones are safe.

Your ex can’t claim your separate property

Within the same section of the law that discusses the equitable division of marital property, the Virginia family code also establishes certain property as separate and therefore not vulnerable to division by the courts or claims by your ex.

The first category of separate property includes the assets you owned before your marriage. This could range from part of the balance of a retirement account to the house where you live or the vehicle that you drive. Provided that you maintain it as separate during the marriage, you can claim sole ownership of those assets in the divorce.

Inheritances also have protection from division in a divorce. Provided that only one spouse was named as the heir of an estate and that they maintained the assets separately from household assets, an individual can protect their inheritance or even gifts received from anyone other than their spouse.

How do you prove what is separate property and what is marital?

Trying to separate your assets from those of your spouse can be a difficult process. Thankfully, financial records can often make short work of the division process.

Proving that you owned assets prior to marriage or that you purchased certain assets with your separate property will protect those assets from claims. The better you understand how property division works, the easier it will be for you to fight for a fair split in your Virginia divorce.



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