Division Of Property In Virginia Divorce: Separate Property, Marital Property, Hybrid Property
In a divorce, one of the most hotly contested issues is property division. While one spouse may be certain that a particular car or piece of property is his or hers, the other spouse may disagree, providing evidence that he or she made improvements to it or payments on it. The division of property in a divorce is a complicated task that requires tracing the property back to its original character and then dividing it based on a variety of factors. Virginia law provides for three types of property that a judge may divide or provide compensation for: separate property, marital property, and hybrid property.
Code of Virginia 20-107.3 defines the three different types of property recognized under Virginia law. The first of the properties is separate property. Under the statute, several types of property is characterized as separate property:
- property acquired by one spouse before the marriage
- property acquired by one spouse as a gift during the marriage
- property acquired by one spouse in exchange for other separate property during the marriage; and
- the spouse’s portion of property classified as hybrid property.
Some basic examples of separate property would be a car that a wife purchased with her own money before the marriage; a car bequeathed to the wife during the marriage in her grandfather’s will; and a car purchased during the marriage by the wife with a gift of cash made exclusively to her by her mother. However, if separate property is ever co-mingled with marital assets, it may lose its separate property character. Thus, the law is very complicated when it comes to separate property, and each piece of property must be traced back on a case-by-case basis.
Marital property is essentially property that was acquired during the marriage. Property characterized as marital property includes:
- property titled in the names of both parties
- the marital portion of hybrid property; and
- all property acquired by each party during the marriage that is not characterized as separate property.
Marital property is presumed to be jointly owned unless there is evidence to the contrary. Examples of property presumed to be marital property unless there is evidence to the contrary includes pensions, profit-sharing, deferred compensation and retirement plans.
Under Virginia law, hybrid property is property which the court classifies as part marital property and part separate property. Some examples of hybrid property under the statute include:
- income earned from separate property
- the increase in value of separate property
- commingled assets
Determining who-gets-what when it comes to hybrid property is a complex matter and requires both skill and experience understanding Virginia divorce laws.
Property distribution is often a central issue during a divorce and both spouses should know their rights when it comes to determining who-gets-what. If you are thinking of getting a divorce, you should immediately seek out an experienced family law attorney who can help you understand your rights and what you are entitled to in a divorce decree.