Habeas ut nanctus. Plautus, a Roman playwright, wrote that in 194 BCE. It means, “He keeps that finds.” Today, we and a playground of school kids would say, “Finders, keepers; losers, weepers.” Property disputes during separation in Virginia sometimes come down to winners and losers.
Separation in Virginia
Virginia law has a long-way-around legal path to separation. You cannot be “legally separated” in Virginia, but you can separate and sign legal agreements while married, applying Code of Virginia § 20-155.
You will separate from your wife for either six months (if you have no children) or a year (if you have children) while awaiting the moment when you can move on to divorce proceedings.
During the separation, you and your wife should make arrangements to safeguard one another’s fiscal and physical health (by laying out a pendente lite agreement under Virginia Code § 20-103 on everything from spousal support to assets and debts to health insurance).
The pendente lite agreement forms the backbone of a full separation agreement, which in turn forms the terms of the subsequent divorce.
What Do Separation Agreements Cover?
Separation agreements in Virginia are really marital agreements. Virginia law is generous on the matter of separation and marital agreements:
- They take effect immediately
- They can be delivered orally (not in writing) to a court reporter
- They can be immediately set aside if you and your wife reconcile
Given the wide latitude afforded to you and your wife in creating a separation agreement, going without one makes no sense. You will protect all of your interests, and those of your wife, with a separation agreement:
- How financial accounts are divided — Retirement accounts, investments, saving and checking accounts
- How debts will be resolved — Personal, unsecured, and marital debts
- How ongoing expenses will be shared — Taxes, utilities, mortgage, etc.
- How personal and marital property will be divided — Real estate, jewelry, sports gear, toys, tools, artwork, vehicles, clothing, and even intellectual property like patents, scripts, and trademarks
- How a small business’s future might be decided or divided — Both continue equal ownership, one sells out to the other, or both agree to sell the business
- Child custody, visitation, and support
- Spousal support
The list is extensive and is best worked through with the support and expertise of family law attorneys representing each of you. The goal is to lay out everything in a separation agreement that might be a problem in the future.
Most attorneys prefer to put in everything rather than relitigate terms later, during divorce proceedings. Still, sometimes, something does get overlooked.
You and your wife tried hard to list everything: the black velvet paintings you adore, the wagon-wheel chandelier she loves, and the mountain vacation cabin. You put everything you could think of into the property settlement agreement.
Then, one day during your separation, you open a forgotten box of estate jewelry you two bought at an auction years ago. She had picked out the lovely brooch but dismissed the other items as outdated. You have a jeweler appraise them. Turns out, that “outdated” jewelry has valuable stones in it, worth some $11,000.
Who owns the box of jewelry? You, because you found it? She, because she took the one brooch?
It is not itemized in a property settlement agreement. It never even occurred to either of you. How will you resolve ownership?
Most separation disagreements can be resolved by understanding the three types of property in the agreement:
- Separate property — Property owned by either spouse before the marriage or acquired during the marriage through one spouse’s personal effort or “by bequest, devise, descent, survivorship or gift from a source other than the other party,” which can include anything from real estate to black velvet paintings
- Marital property — Property purchased by either or both spouses, or gifted to the two of you, for the maintenance of the marriage, like a vacation home, artwork, clothing, appliances, silver service, fine china, and such
- Part marital and part separate property — You use separate assets (say, profits from the sale of a family home you owned before the marriage) to maintain or improve your marital conditions
Your family law attorney may explain to you that, if and when unexpected assets (or debts) turn up, they must be allocated according to those three conditions. In our example, since the forgotten estate jewelry was bought by both of you during the marriage, it is marital property to be divided between you. It is not a case of finders, keepers.
Property disputes should be settled using that guidance, from Code of Virginia § 20-107.3. Any disputes that are not resolved will require either a negotiation conference or mediation.
Seek an Experienced Property Settlement Attorney
The Firm For Men can guide you through all the tricks and traps of separation in Virginia. We stand ready to help Virginia’s men with every aspect of family law. Contact us today or telephone our Virginia Beach office at (757) 383-9184.