Irish author James Joyce wrote, “What’s yours is mine and what’s mine is my own.” He was not the clearest writer. He also wrote, for example, “Mr. Duffy lived a short distance from his body.” That line about mine and yours is clear enough, though, and rings true to many a Virginia man facing the depletion of a bank account by a soon-to-be ex-wife.
Your Property in Marriage
Entering a Virginia marriage, everything you cart through the door of your marital home falls into one of three categories. Well, we don’t really want it to fall — your grandmother’s Wedgwood china deserves better than that — it gets carefully carried in and divided as:
- Separate property
- Marital property
- Hybrid property
Separate property is all the stuff and dust catchers you each bought with your own funds (or had given to you) before your marriage. This includes inheritance, real estate, vehicles, Wedgwood china and Belleek crystal (that’s Irish, too!), and your Dansby Swanson autographed baseball which, someday, will probably [not] fund your kids’ college, it’ll be worth so much [it won’t]!
Marital property is all the stuff and dust catchers you two buy during your marriage to benefit the marriage. This includes things like your retirement accounts (because you are considered to bring intangible supportive “benefits” — wink, wink — to each other so you are productive, happy employees who obnoxiously whistle while you work on Monday mornings and everybody knows exactly what you did on the weekend), bank accounts, marital home, vacation home, RV, and all the rest.
Hybrid property is an unusual situation in which you use separately acquired property to benefit the marriage. Say you used part of an inheritance from your rich Irish uncle to purchase your first home in Dublin (Virginia, not Ireland). That home is now hybrid property, in that it is a mix of separate and marital assets.
Your Property in Separation
Unless you had the forethought to craft a prenuptial agreement with your attorney before your marriage, a separation can cause confusion and heartache when divvying up the property. You can figure out easily enough what was each your separate property and what must be part of the property settlement agreement (marital property), but hybrid property may be a source of conflict.
Worse, decisions and purchases made during the separation but before divorce can cause even greater conflict. Your soon-to-be ex-wife may feel completely entitled to take 50 percent of the funds from a marital account and go out to buy a nice little Irish-inspired cottage with thatch roof so she has a comfy place to wait out the separation period.
She is not, however, entitled to do that. Marital property remains marital property during a separation. Separate property stays separate during separation (that’s a very Joycean sentence, that is). If she took marital funds from a marital (jointly owned) bank account, whatever she buys with it is marital property.
Agree to Agree
To avoid any unpleasantness and doubt, you and your attorney can propose an agreement to cover purchases made during the separation period before a divorce. You understand that, practically, she (or you) will need a place to live away from your marital home. She needs to understand (and her attorney needs to explain to her) that she cannot empty your marital account to make that happen. If she does, you own roughly half of what she buys.
A postnuptial agreement can protect both you and your nearly ex-wife. It can be limited in scope, setting a total dollar amount (she could make X number of purchases, none of which can exceed $X) and specifying how the purchased asset will be valued (as separate or marital property). It can provide a sunset clause, so the marital property purchased during separation must be liquidated at divorce.
Protect Yourself and Your Assets
Joyce wrote, “They lived and laughed and loved and left,” which could be the plot line to many a Virginia marriage. You can protect yourself from clashes with your nearly ex-wife by opening and maintaining separate bank accounts. That way she can put into her account what she earns, and you can put into your account what you earn. If she has enough saved to afford to buy a lovely little seaside cottage, all well and good — if not, she can rent an apartment and leave the marital account alone.
Few married couples have the (some would say grim) foresight to begin marriage with separate accounts. It signals a lack of faith in the marriage, so do not consider yourself lagging if you are approaching separation and have no separate account.
Upon separation, which you both will mark so that you both know the official countdown to divorce has begun, you can each open your individual accounts. So long as marital assets and debts are properly managed, neither can complain about the diversion of money to those individual accounts.
Call The Firm For Men’s Attorneys for Men
Please call The Firm For Men at 757-383-9184, or contact us online, with all your concerns about separation, marital property, and other aspects of separation and divorce. We help Virginia’s men preserve and defend their rights.