Inside Rivers Casino Portsmouth you can hear two very different phrases about houses: “bet the house” and “play against the house.” We do not advise you to bet the house on your next wager, since it means you risk everything. And you should know the house, the casino, always has an edge. Playing against the house puts you behind from the very first turn of the card. But what about the actual marital home in your Virginia divorce? Who wins that?

Jump to a Section

Understanding Equitable Distribution

Equitable distribution and equal distribution in property settlement are two different concepts.

Suppose you have two kids, one two feet tall and the other four feet tall. For them to reach the cookie jar atop the refrigerator, do they need same-sized step stools?


Your shrimp needs a three-foot tall step stool while your future basketball star needs only a one-foot boost. To treat your kids equitably, you need to give them the step stools they each need, not identical ones. Giving them both two-foot step stools may be equal, but it is not equitable.

The same is true in Virginia, with property division. During your property settlement agreement, one of you will likely carry a larger share of these burdens:

  • Child custody
  • Childcare
  • Dependency claims
  • Real estate taxes
  • Mortgage payments

To ensure equity and fairness in unwinding two people’s knitted lives in Virginia, the courts and legislature do not fool around with “community property,” or 50-50 splitting of every last cup and saucer. They apply an equitable distribution of assets and liabilities.

Types of Property: Mine, Yours, and Ours

Circuit Court judges use Virginia Code § 20-107.3 to sort out the haves and have-nots of the divorce. Everything (we mean everything, from real estate down to those cups and saucers) goes through a process to determine its origin:

  1. Separate property
  2. Marital property
  3. Hybrid property

Did you work 60-hour weeks to earn the larger paycheck? Did your spouse offer significant non-monetary contributions, such as running the family home, meeting the kids’ teachers, and buying baseball bats and Barbie dolls?

All of that and more gets factored into the judgment for equitable distribution.

Can You Both Keep Your House in Divorce?

If both your names are on the house title and deed, after divorcing you could continue to handle the house as you did while married. You could keep your names on the title and deed as co-owners. You would then each contribute your equitable share to all the expenses:

  • Mortgage
  • Insurance
  • Taxes

You could each continue to live in the house, awkward as that may be. Most family law attorneys do not advise this, but legally, you can do it.

So Who Gets the House?

In general, the spouse with the larger share of child custody may keep the marital home. Consider the alternative:

  • Children, already at least mildly traumatized by the divorce, have to uproot their lives
  • The tykes have to leave their childhood home, including that door jamb with their heights drawn on it
  • The school-age children have to go to new school districts
  • The entire family bids farewell to strong emotional attachments and fond memories

Even if you and your spouse agree to a 50-50 custody arrangement, the existing family home will almost always carry more of the financial burden than a spouse’s new quarters (refrigerator cartons are very inexpensive).

Most Virginians (68.9 percent in 2018) have mortgaged homes. Divorcing does not magically open up a huge vault of money, so the family home’s mortgage must be equitably divided. Often, one spouse will stay and the other will move out.

The spouse continuing to live in the family home faces real estate taxes, the mortgage, and homeowners’ insurance. The spouse moving to sleeker digs usually has more modest expenses, often renting instead of buying a new place.

Selling the Marital Home

Many Virginia couples have nearly grown children or no children at all. The “marital home” may have no appeal to either spouse. For those couples, selling the family home is a great way to gain a supply of cash to fund post-divorce lives.

The house can be sold, with the proceeds equitably (not equally) divided. This is an especially appealing way to move on from an unhappy marriage, since the miserable memories can be left behind in the marital home.

Buying Out Your Spouse

You are unlikely to find $250,000 to buy your spouse out of the marital home. Take heart, though; your spouse probably has no money, either.

Yet divorcing couples can buy each other out of the marital home. The spouse staying in the home buys out the departing spouse.

The buyout could be gradual, taking many years. The departing spouse’s name disappears from the mortgage and title right away, though.

Another way to finance a buyout is by swapping the value of the equitable portion of the house for some other marital asset, such as retirement savings or a vacation home.

Find Solid Counsel

Your strongest ally in determining the best path forward with property settlement is not a real estate agent. Your best partner is a good family law attorney. Discuss your concerns and listen to your options for fighting to gain the house, or for trading off the house value for a liquid asset.

The Firm For Men can help any Virginia man with every aspect of separation and divorce, including equitable division of marital assets like houses, RVs, camping equipment, and refrigerator cartons. Contact us online today or telephone us at (757) 383-9184.