Summary of Division of Property in Virginia

In Virginia, courts generally prefer that spouses reach an agreement themselves regarding distribution of debts and properties. However, courts will intervene and decide distribution issues if the parties are unable to reach an agreement.

One of the most complex areas of Virginia divorce law relates to the distribution of property by courts. The method of distribution used in Virginia is called "equitable distribution." This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. In Virginia, there is also third classification of property called “hybrid property.” Note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

In Virginia, equitable distribution usually is determined at the conclusion of the divorce proceedings. This distribution determines the relative rights and interests of the divorcing parties in property acquired before, during or even in some cases after the marriage.

"Marital Property"

Marital property is generally defined under Virginia law as any property that includes the names of both spouses or was acquired during the marriage using funds from both parties. Also, any money acquired during the marriage such as bonuses, pension plans, profit sharing or deferred compensation is considered marital property.

“Separate Property”

Separate property is defined under Virginia law as:

• (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. Income received from separate property during the marriage is separate property if not attributable to the personal effort of either party.

“Hybrid Property”

If marital property or significant personal efforts of either spouse during the marriage cause a substantial appreciation in the value of separate property, then that property can become hybrid property, with the increase in value being declared by the divorce court as marital property, regardless of the title.