How does our property get divided?

The easiest way to divide up property, as with all aspects of a divorce, is to enter into a Separation Agreement wherein the parties have agreed as to the disposition of the property. Barring such a document, the Court will divide up the parties’ property (called “equitable distribution”) under the guidelines established by the Code of Virginia. This is a complicated process wherein the Court determines the nature of the each piece of property (separate, marital, or a hybrid of both) and then considers 11 factors set out by the Code of Virginia in dividing up that property which is marital in nature (separate property is awarded to the party to whom it belongs).[1]  These factors are: 

  1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  3. The duration of the marriage;
  4. The ages and physical and mental condition of the parties;
  5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
  6. How and when specific items of such marital property were acquired;
  7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  8. The liquid or nonliquid character of all marital property;
  9. The tax consequences to each party;
  10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
  11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

As indicated, this is often very complex because there is a substantial body of law discussing the classification of property as separate, marital, or hybrid, and, of course, the factors themselves have been applied in a wide-variety of ways.

Property and divorce
Kellam T. Parks
Managing Member of Parks Zeigler, PLLC