What is Separate Property in Virginia?

Posted about 3 years ago. Applies to Virginia, 1 helpful vote

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What is Separate Property in Virginia?

In a divorce case in Virginia, before a court can even think about dividing property between the parties or taking any other action with regard to the prpperty, it must be classified. The property can be be classified as either separate, marital, or hybrid (part marital-part separate).

Virginia Code Section 20-107.3 defines separate property" as follows:

  1. Separate property is

(i) all property, real and personal, acquired by either party before the marriage;

(ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party;

(iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and

(iv) that part of any property classified as separate pursuant to subdivision A 3. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party.

The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property.

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.

"Personal effort" of a party shall be deemed to be labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party.

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.

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.

It is important to keep your separate propert separate and not to commingle it or it can lose its status.

It also is important to remember that earnings during the marriage are marital property, not separate property.

Additional Resources

Family Law Website

Family Law Blog

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