Because we live in the here and now, we tend to think marriage now is what marriage has always been. That is not true, as pointed out in a Huffington Post article that reviews marriage historically. For much of humanity’s time on earth, marriage was a business arrangement; make kids, find food, acquire wealth. Once you free yourself from thinking marriage is a monolithic institution unchanged for thousands of years, you can begin to see how divorce can also change. Property division in Virginia today is very different from decades ago.
Equitable, Not Equal
Property division in a Virginia divorce does not start at 50-50 and work up or down depending on the talents of your attorney and the weakness of your wife’s attorney. Virginia law requires “equitable,” not “equal,” property settlement.
As the Virginia Bar Association puts it, marriage is a financial arrangement (just like in medieval times!) that includes debts and assets, each to be divided equitably between the two partners.
A Virginia marriage does not require each spouse to run around the marital home calling “dibs” on property, furnishings, accounts or assets. A marriage is understood to offer “intangible benefits” to each partner:
- Physical, spiritual, emotional and sexual well-being
- Financial security, planning and acquisition of assets for the good of the marriage
- Emotional support to make each partner productive, prosperous and valuable to society
This philosophy underlies some of the wording in Code of Virginia § 20-107.3, in which a Virginia Circuit Court is granted power to divide both debts and assets between married partners.
Property Doesn’t Need Name Tags
As Virginia sees it, property does not need name tags to be distinguished in one of three ways:
- Separate Property — Acquired by only one of the marital partners before or even during the marriage through the efforts of an individual, through inheritance, or by gift and exclusively for the benefit of that individual
- Marital Property — Assets acquired for the benefit, nurturing or furtherance of the marriage
- Hybrid Property — Assets rooted in separate property, like an inheritance, but used to advance the marriage, by (for example) making a down payment on a time share using Uncle Harry’s $25,000
Though a retirement account may be in your name, and from your employer, your wife is legally considered to have contributed to your sense of well-being and productivity and is therefore entitled to an “equitable” portion of it.
Though the vacation home in the Shenandoah Valley may be paid by a mortgage you each contribute to, your wife’s 20 percent down payment and name on the deed probably places that squarely with her.
Not Entitled to the Title
“For purposes of this section marital property is presumed to be jointly owned unless there is a deed, title or other clear indicia that it is not jointly owned.”
This means the title to your marital home should have both names on it, but if it has only yours, you can make the claim that it is your separate property. That may be a risky claim; if your wife produces any evidence of contributing to the maintenance, upkeep, cleaning or improvement of the marital home, your argument is undermined.
If her name does not appear on a deed, she cannot take title of the property. That is not at all the same as saying she is not entitled to some award for her time in the marriage. The court may decide that, though you “own” the property yourself, you must give her a cash payment equal to her fair percentage of that property. The thinking is found, again, in § 20-107.3:
…where 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.
You get to keep the title but may have to give her cash compensation.
The long and short of this whole issue is that you may end up feeling short-changed. Whether you own stocks, mutual funds, bonds, furs, artwork, a 1931 Duesenberg Model J Murphy, your wife may not have her name on a damn thing but still be entitled to compensation for the “contributions, monetary and nonmonetary, of each party to the well-being of the family …” Guess where that little tidbit comes from? You got it: § 20-107.3.
Your selection of an attorney becomes critical if you do have significant assets with questionable or uncertain status. Your wife’s attorney will strive mightily to “help” the court see that she deserves an equitable share. Your attorney must work harder to limit your pain.
A call to The Firm For Men at 757-383-9184, or a contact online, can help you connect to a Virginia family law attorney who knows divorce law inside and out. If your wife’s name is on the marital home deed but not on the vacation home, if her name is on the registration for all your cars but not on the RV, we can help you sort it all out. Contact us today to learn how.