The chasm between what the general public “knows” about law and what the law actually says is sometimes wider than the Grand Canyon of the South1. Take “community property,” for instance. Community property refers to assets acquired during marriage and split perfectly equally between divorcing spouses. Only nine states have community property laws. Virginia is not one of them.

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Community Property States

The nine states with community property laws (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) expect married couples in separation and divorce to take a scalpel to their assets and give each spouse 50 percent.

Virginia, by contrast, has provisions for separate property. One spouse may earn more, or work longer hours, or have greater assets than the other. During separation and divorce in Virginia, one spouse can present evidence to the Circuit Court that those separate assets should be returned to that spouse.

Dividing Marital Assets in Virginia

The Code of Virginia (§ 20-107.3 — feel free to look it up) describes and names two types of property subject to equitable division during property settlement in separation and divorce:

  1. Separate Property — “Separate property is (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 pursuant to subdivision 3”
  2. Marital Property — “Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, except as provided by subdivision 3, (ii) that part of any property classified as marital pursuant to subdivision 3, or (iii) all other property acquired by each party during the marriage which is not separate property as defined above.”

Equitable Distribution in Virginia

Equitable distribution, rather than community property division, is the law in Virginia.

We have all heard a child cry out, “That’s not fair!” The word “equitable” is magical music to most parents’ ears:

  • In dispensing attention, food, clothing, and toys, an equitable parent gives every child what he or she needs, not an exact fraction of available resources
  • Contrast that with giving a 16-month-old and a 16-year-old exactly the same food, time, and parental attention

In simple terms, suppose you have $100 to divvy up among your four kids. Fairness is not giving $25 each to all four kids; it is giving a shiny silver dollar to the four-year-old who has no idea what money is and giving $50 to the 15-year-old working part-time at the local peanut farm. That is an equitable distribution.

Hybrid Property

Though the statute does not use the term “hybrid property,” a third classification of assets is described in § 20-107.3 (it’s still there; you can look it up again):

The court shall classify property as part marital property and part separate property as follows:

  1. In the case of income received from separate property during the marriage, such income shall be marital property only to the extent it is attributable to the personal efforts of either party.

This part of the law rewards the spouse who contributed more to tangible marital assets. It does not punish the spouse who contributed less; it is equitable, not equal.

Calculating Equitable Distribution

In Virginia, save your receipts. Save documents indicating you worked overtime, patented an invention, wrote a screenplay, or earned three times what your spouse did.

If you ever need to calculate equitable property division as part of a separation agreement, you will need all the documentation you can find to prove to a court that you provided the lion’s share of the assets. That makes you deserving of the lion’s share of the distribution.

Contributions of Each Party

Before you lick your lips, though, discuss the word “contributions” with your family law attorney. A judge may use “the contributions, monetary and nonmonetary, of each party to the well-being of the family” in deciding equitable distribution.

Say you are the sole earner with a stay-at-home spouse. Your spouse provided a clean home, clean clothes, cooked food, chauffeuring, and — to be blunt — sexual satisfaction so you could happily go off to work and earn a good living for the family. Your spouse contributed to the marriage and deserves credit for that contribution.

A House Divided

As you begin to contemplate property division, consult with an experienced family law attorney. Your attorney’s job is to ensure you get all assets to which you are entitled, without punishing your spouse. Dividing a house and its contents can be messy, but at least in Virginia it is done equitably.

The Firm For Men stands ready, always, to answer your family law questions. Contact us today or telephone us at (757) 383-9184 to reach experienced attorneys dedicated to helping Virginia’s men. We help preserve your financial security, calm your nerves, and clear up any confusion regarding separation and divorce.