Few students of literature these days can easily recall Robert Frost’s Mending Wall1, but it begins with the famous “Something there is that doesn’t love a wall,” and ends with the ironic and eloquent, “Good fences make good neighbors.” Property disputes in divorce remind us of the sad irony and wistful despondency of Frost’s poem. The blithe neighbor in the poem talks past the poet’s voice as he pleads not to have the wall at all. Disputes in divorce — child custody, spousal support, property settlement agreements — all require the hard work of listening and talking to avoid putting up walls between the two sides.

Property in a Virginia Marriage

The Code of Virginia recognizes several types of property in a marriage, all of which must be divided, apportioned, or assigned by the court during the divorce. If you take the time to understand how property is legally viewed in Virginia, you can save yourself some anxiety and unpleasant surprises.

The Court determines property as one of three types:

  1. Marital property
  2. Separate property
  3. Part marital and part separate property

If you understand how property is viewed by the court, you will not be forced into a dispute over property that is clearly marital or separate.

Defining Marital Property

Anything you and your spouse acquire during your marriage is marital property. The list is long:

  • Real estate or any property titled in both names
  • Pensions
  • Deferred compensation
  • Retirement plans
  • Profit-sharing plans
  • Physical property such as vehicles, jewelry, possessions, appliances, tools and furnishings
  • Stocks, bonds, mutual funds
  • Cash

You and your attorney have to demonstrate conclusively that property is not marital; the Court’s default position is that it is jointly owned and divisible between you and your spouse.

Facing a dispute over marital property? Produce evidence that the Honda CR-V is yours alone (title, sales receipt) and she has little to dispute. You need not become a hoarder to preserve valuable papers; simply save receipts and records of significant purchases you made that you did not consider “marital property,” such as your mechanic’s tools for your hobby of Enduro racing at Winchester Speedway. You may need to prove to the judge’s satisfaction that your wife did not materially contribute to your hobby, by rooting you on, changing your oil, or making tuna sandwiches for your trip.

Defining Separate Property

In Virginia, separate property is seldom the stuff of disputes, because the biggest category of separate property is the real and personal property was owned by either you or your spouse before you married.

Another “separate property” category spelled out in Code of Virginia is property acquired during your marriage that came to one or the other of you by:

  • Bequest
  • Devise (a gift of real property by the last will and testament of the donor)
  • Descent (“That quilt was handed down for generations …”)
  • Survivorship
  • Gift (but not from each other)

Yet another category of separate property is all property that came into the marriage through exchange or sale of separate property. Say your grandfather left you some shares of Virginia-based American Woodmark. In 1986 it was worth $6.09 a share; today it is worth over $90 a share (thanks, Grandpa!). You sell 100 shares and buy must-haves for your man cave. If you treat them as yours alone, they are separate property, bought with the proceeds of an inheritance that came solely to you.

Say your wife wrote a lovely children’s book before she married you (Drummer Dick’s Discharge, let’s say). The royalties from that book are hers alone, but if she writes another children’s book while married to you (I Wish Daddy Didn’t Drink So Much, let’s say), you can claim a share of the royalties if you can show you provided “material support” for her creative endeavors, by, perhaps, inspiring her with your zany, madcap alcohol-fueled antics.

Part Marital and Part Separate Property

You might as well go out and kick a hornet’s nest so you can get accustomed to the feeling of the disputes that will arise over property the court deems “part marital and part separate.”

Income you receive from separate property (that stunning children’s book, for example) becomes marital property if either party makes a significant, personal effort to generate that income. She went out on promotional book tours while you stayed home and helped with the children; her income from increased sales of Drummer Dick’s Discharge can be linked to your substantial effort to help her.

The Court even recognizes the hopeless entanglements in which separate property eventually blends into the marriage, so it becomes “transmuted” into marital property. Of all areas that are likely fodder for property disputes, expect to face the greatest challenge with this category.

Property Settlement Agreements

To get to the end-goal of a property settlement agreement, you might have to go through a whole lot of disagreements. You may quibble over who received what as a gift. You may disagree over how to split the ten toaster ovens you received as wedding gifts. You should not have to face true disputes about property — if you have your paperwork in order.

Your attorney will work with you to put into writing the things you value and wish to retain, so long as they are not distinctly marital property. Your attorney will help you compile a list of property you desire, and property you might use as bargaining chips in reaching an agreement. Once you and your spouse agree, the court will accept the document as binding on both of you.

For help drafting a property settlement agreement, or gaining clarity on the categories of property in Virginia law, contact us at The Firm for Men, 757-383-9184. For help with interpreting poetry, try the library.

[1] https://www.poetryfoundation.org/poems-and-poets/poems/detail/44266

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