Division of Marital Property in Virginia
Part One: Separate, Martial, and Hybrid Property
The division of property in a divorce, called equitable distribution in Virginia, can be both stressful and confusing. Many people assume that if an asset is titled in their name then it is theirs.
However, the analysis is more complicated than that. In Virginia, property is divided into three categories: 1) Separate; 2) Martial; and 3) Hybrid. This article will briefly touch on each category when considering the division of marital property in Virginia.
Separate property is property that you own entirely by yourself and is not subject to division in a divorce. It is, for example, property that you brought to the marriage or an inheritance. In a divorce, you generally get to keep your separate property so long as you kept it separate.
If property is “commingled” with martial property to the point that it is not possible to tell whose contributions are is whose, then it can become marital. Likewise, if you re-title separate property jointly with your spouse, it can become marital.
Marital property is all the property and money that is earned or purchased during the marriage that does not qualify as separate property. People are often surprised to find that pensions, deferred compensation plans, and other retirement plans contributed to during the marriage can be marital.
As the name suggests, hybrid property is what happens where an asset has elements of separate and marital property. For example, during the marriage you and your spouse purchase a home secured by a mortgage using money earned only during the marriage. The home and any equity you have in it is marital property. Later, you receive an inheritance of $25,000 from your great aunt.
This inheritance is separate property. You then use that money to pay down the principal on the marital home’s mortgage. The equity in the home is no longer martial, it is hybrid. A portion of the home and its equity could be considered your separate property and not subject to division in a divorce.
Understanding the way that certain assets are going to be categorized in a divorce is crucial. In Virginia, assets acquired during the marriage are presumed to be marital. It is up to you to present enough evidence to overcome this presumption. However, categorization is only one part of equitable distribution. The question then becomes how much of a credit should you get when dividing hybrid property. In part two of this series I will discuss various methods courts have used to value hybrid assets.
Help with Division of Marital Property in Virginia
An experienced family law attorney can help you present the best argument for accurate categorization. If you have any questions concerning the division of marital property in Virginia, how a court is likely to categorize your asset, or have any other general family law questions, contact our firm today.