You can blame Causby’s chickens for losing the limitless air rights above your home. The Supreme Court’s 1946 decision1 set an upper limit to those rights (usually no more than 1,000 feet), but it was Thomas Causby’s chickens that led to the order. His chickens, terrified at low-flying airplanes, ran themselves to death in a flight or fight reaction (sorry about that pun there). In facing a property settlement agreement, what besides your sky-high air rights are at stake?
Your Property & Equitable Distribution
In Virginia’s legal Code, marital property is only one of three types of property to be divided equitably (not equally) between spouses in a divorce. Here is how the Code lays things out:
- Separate property is property owned by each individual before the marriage, such as your collection of pinball machines. This could be property given to you in an inheritance, bought by your hard work, or won by you in a lottery, for example.
- Marital property is property you both actively contribute to during your marriage to better your marriage, such as buying a marital home, vacation time share, or retirement funds.
- Hybrid property is property that benefits the marriage but was at least partially funded by separate property, as when you use some of Uncle Zeke’s inheritance money to buy a yacht.
In most cases, the marital home will bear two owners’ names on the deed, but that is not required. If you purchased the marital home while your wife was, for example, in the hospital recovering from giving birth to your child, or was overseas, your name alone could be on the deed or title.
Deeds and Titles
A title to a property declares that the represented owner has the rights to that property. A deed is the legal document transferring title from seller to buyer of a property (vehicle, second home, primary home, yacht; any large purchase).
To purchase property or a home in Virginia, you acquire title to the house and, at closing, receive the deed (unless you have mortgaged it, in which case the mortgage holder holds the deed). Whoever signs the deed owns the house.
Every Virginia county maintains a records office of titles to property, and every city of any size has title companies ready to physically search those records to prevent claims against a property you think you rightfully own.
If you alone sign the deed, you alone own the house. This could be an awkward moment for your divorcing wife, but it is Virginia law.
Given that the goal of a Virginia divorce is to leave you and your wife not attached, the legal language reveals an odd turn of the phrase in emphasizing title ownership supersedes property division:
For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital property. However, such interests and rights shall not attach to the legal title of such property and are only to be used as a consideration in determining a monetary award, if any, as provided in this section.
So, while a Circuit Court may compel you to pay your wife some amount of money representing her “share” of the marital home, you cannot be compelled to give up the title to the house itself.
Arguments on Marital Property
Displaying both a title and a deed with a single name on them is fairly convincing proof in court, but your divorcing spouse can argue against the idea that the marital home is separate property. If, for example, she can show that she contributed a substantial portion to the down payment, or she used some her separate property (income) to buy, remodel or maintain the home, she and her lawyer can make strong claims to having equity in the house.
The response of you and your lawyer, of course, is that the deed and title are in your name alone, and you assume all financial risk should you default on the loan for the house.
Find Practical Solutions
Depending on how strongly you feel about the issue, both attorneys (hers and yours) could suggest creative solutions, such as selling the marital home and dividing the proceeds in a ratio proportional to each person’s contribution.
Bear in mind the Virginia legal Code includes 11 factors besides outright ownership in establishing equitable (not equal) property division. Here are just a few that may not be clear-cut and easily valued:
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
To get all your questions answered by real Virginia family law attorneys, contact The Firm For Men at 757-383-9184, or contact us online. We can resolve problems with property settlement, ownership issues, and more. And, we know a lot of even weirder law cases than United States v. Causby.