You think your divorce is messy? Consider a former Virginia Beach City Council member’s story. According to InStore Magazine’s interview, in the space of a few years, the former council member’s businesses (seven jewelry stores), inventory, and home were seized by banks, he went through a difficult divorce, ran for Congress, switched political parties, realized he was gay, and had a heart attack. Later, his City Council seat was vacated. He was left with almost nothing: two software keys and some brass and glass jewelry samples. Well, you might say, at least that made the property settlement easy.
Property Settlement in Virginia
Under Virginia law, property accrued in marriage has to be parceled back out to the two parties. The process is spelled out in Code of Virginia § 20-107.3, which describes three categories of property in a marriage:
- Separate property
- Marital property
- Commingled property
The first two categories are clear-cut sufficiently that only the most hostile divorce parties would haggle over them. Unless you have been married so long the two of you really cannot remember which of you brought the black velvet Elvis painting to the marriage, you know what was yours before marriage and what was acquired during the marriage.
The third category is where attorneys genuinely earn their wages, because untying the Gordian knot of commingled property can be frustrating, lengthy, and difficult.
Under Virginia law, the real and personal property you had before you married her is separate property. Your wife’s separate property is, similarly, her own. This means you keep your velvet Elvises … Evlii … Elvisae? She keeps her Catherine Carter Critcher (Virginia painter, born and died in the Old Dominion? No? She’s in the Smithsonian).
In a marriage of great duration, you truly can lose track of who brought what to the marriage. Receipts, written records, photographs, and even friends’ testimony can be helpful in making sure you preserve what was yours as a single man, even after divorce.
The other category of separate property is property given to you during the marriage, but not by your wife. As the law says, “all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party” is yours alone.
Say your rich Aunt Jennifer sheds the mortal coil and leaves you her antique hunting rifle collection. She named you, not your wife, in her will. You own the guns.
Yet another possibility exists with separate property. If you use your own funds (from before the marriage) to buy something, you own that, too. You have to maintain it as separate property, so your name alone should be on the registration of the middle-age crisis sports car bought with proceeds from selling Aunt Jennifer’s hunting rifles.
Intangible assets are also part of the settlement. Suppose before you became a married man you wrote a little ditty about dear sweet Aunt Jennifer (“I thought Aunt Jennifer was quite an eyeful, and then she up an’ left me her huntin’ rifle”). Your talent agent, Lexicons & Arias Inc., held out little hope for you, but a decade later, Lady GaGa picked it up, dusted it off, and sang the heck out of it. You get a check from Lexicons & Arias Inc. for royalties. That check is yours alone.
This is clear-cut and short: anything with both your names on it, anything you bought to sustain the marriage, and anything you both used during marriage, is marital property. Sounds simple, but remember that definition of “property” includes:
- Real estate
- Personal property
- Retirement plans
She gets a slice of your 401(k) and you get a slice of her 403(b). Her tax-deferred annuity is partly yours, but your profit-sharing plan is partly hers.
Ah, yes, the sticky part. Hybrid or commingled property in a Virginia marriage is a whole palette of grey. Virginia Code goes on a bit longer than usual for the legalese in sorting out all the permutations of commingled property.
In a [very large and lengthy] nutshell, commingled property is marital property bought and used in the marriage by both of you but acquired using separate property or funds. This can be any ratio or combination of commingling, like using inheritance to buy a family RV, or selling Aunt Jennifer’s hunting rifles to put a down payment on the marital home.
Suppose before the marriage, you had a lovely little artist’s cottage where you painted and stored black velvet Elv— nope, not going down that road again — black velvet paintings of a particular singer. After you marry, you and your wife rent the cottage out to other artists. You use the rental income for fun little things for your marriage. (Hey, hey, none of that kind of thinking now. We meant vacation money, flowers on her birthday, a new dishwasher. Let’s keep this clean, folks.) Since you both benefit from the proceeds, you both receive a share in divorce, so long as you both put your own “personal effort” into maintaining the source of income.
Your lawyers will work hard to identify the origins of commingled marital property if they can suss out the identity of separate property that led to it. They (your attorney and your wife’s) do that to preserve your rights and financial interest:
… to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification [as separte property].
Call The Firm For Men’s Property Settlement Attorneys
Please contact The Firm For Men online or telephone us at 757-383-9184. We can help you understand separate property, marital property, and hybrid property. We can untangle the tangled web of who owned what, when. We can settle your property, preserve your rights, and defend you throughout your Virginia divorce.