Fairfax property division lawyer

If you and your partner are considering separation and divorce, or you are currently separated, it is essential that you work with an experienced family law attorney to help you through the process. An attorney will ensure that the division of property is equitable, supported by law, and as close in line with your preferences as practically possible. virginia property division home

A Fairfax family law attorney from Select Law Partners is available to consult on your case to determine how to best divide your property. 

Virginia is an “equitable distribution” state

Like most states, Virginia has adopted an “equitable distribution law” for the division of marital property and debts in a divorce to promote results that are both fair and equitable because marriage is an economic partnership and should be treated as such upon dissolution.

This law dictates how marital property and debts, separate property and debts, and part marital and part separate property are treated upon divorce.

The state’s equitable division law requires that the following be completed so that a fair division of marital debts and property can be achieved: 

  1. The classification of all property (i.e., assets) and debts as either marital, separate, or part marital and part separate 
  2. That the marital property and the debts be valued 
  3. Upon classification and valuation, the marital property and debts are equitably divided based on specific statutory factors outlined in Virginia Code Section 20-107.3

Under Virginia Code Section 20-107.3, after the parties have decreed the dissolution of a marriage, the court, on request of either party, can determine: 

  • The legal title of the property as between the parties
  • The ownership of the property
  • The value of the property, whether real or personal, tangible or intangible 
  • The classification of each property and debt as either separate, marital, or part separate and part marital 

Decisions in a divorce, including regarding the division of property, can be obtained in the following ways:

  • Agreement – a mutually acceptable written agreement negotiated and drafted with the assistance of family law attorneys can be signed and filed with the court to finalize the divorce or, at minimum, to finalize some aspects of the divorce. The agreements reached will then be incorporated into the final divorce order.
  • Court intervention – if you’re unable to reach an agreement outside of court, then your case can be brought before a judge. Both sides will present their positions and evidence to the court, and ultimately the court will make the final decisions, sometimes ordering something that neither you or your spouse wanted. The court doesn’t have to decide all issues–you can reach agreements amongst yourselves on some issues and have the court rule on those that remain.  

Types of marital property

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Under state law, marital property includes: 

  • All property that is titled in the names of both spouses, whether as tenants by the entirety, joint tenants, or otherwise, subject to a few specific exceptions 
  • The portion of any property that is classified as partly marital 
  • All property including the portion of pensions, deferred compensation, profit-sharing, or retirement plans of all natures that is acquired by either spouse during the marriage
  • All other property that is acquired by each spouse during the marriage that is not classified as separate property is automatically considered marital property and is subject to the equitable division laws

The determination of property as marital or separate will strongly influence the outcome and financial consequences of your divorce. There is also the potential that some property will be defined as partially separate, and partially marital. 

Types of separate property 

Under Virginia Code Title 20 107.3(A)(1), separate property is: 

  • All property, both real and personal, acquired by either spouse before the marriage 
  • All property that was acquired during the marriage by devise, descent, bequest, gift, or survivorship from a source other than the spouse 
  • All property that is acquired during the marriage in exchange for the proceeds of the sale of separate property, so long as that property is maintained as separate 
  • Additional properties that are acquired under specific circumstances, such as income received from separate property, or an increase in value from separate property 

Determining whether property is entirely separate, or may have become marital property over the course of the marriage, can impact how it’s distributed in the divorce.

Evidence will be required to prove that the property is either separate property or that it was converted or transmuted into marital property during the marriage. This is when it becomes crucial to have an experienced Fairfax family law attorney by your side.

Part marital and part separate property can complicate the divorce 

One of the more difficult aspects of dividing property equitably is when a piece of property is part marital and part separate. Determining which portion of the property is marital and subject to equitable division, and what part will be kept separate, can make a substantial difference in the outcome of your divorce.

Under Virginia Code Section 107.3(A)(3), part marital and part separate property are classified by a court as follows: 

  • If income is received from separate property, the income is marital to the extent it’s attributable to the “personal efforts” of either party 
  • When separate property experiences an increase in value during the marriage, the increase in value is only considered to be marital if it was attributed to the personal efforts of either party, and those efforts were significant enough to result in the substantial appreciation of the property. The non-owning spouse has the burden of proving that the contributions of marital property or personal effort increased the value. The owning spouse bears the burden of demonstrating that the rise in value wasn’t due to contributions of marital property or personal effort of the non-owning spouse 
  • If property is so commingled that it’s impossible to trace what portion of it was separate property at the time of division, the part of the property that can be traced as separate property with supporting evidence may be counted as separate property
  • If property was retitled into the joint names of the parties, it shall be deemed transmuted to marital property. But, if it’s retraceable by a preponderance of the evidence and it was not a gift, it shall retain its original classification.

virginia property division lawyer argument

Making the argument that commingled property is either separate or marital can be very difficult and confusing, as is applying a formula of determining which party of a mixed asset is separate and which part is marital. This is one of many reasons why you should hire an experienced Fairfax family lawyer to assist in your divorce.

Factors to consider when dividing assets

Although the division of property must be equitable, it doesn’t have to be an equal split of each piece of property or the marital estate as a whole, the court just has to do what he or she thinks is fair (“Equitable” means fair, at least for purposes of dividing property in a divorce). Instead, there are a variety of factors that are considered which can go beyond the classification of assets as marital, separate, or a combination.

Factors that can impact the division of assets include: 

  • The contributions of the spouses 
  • The duration of the marriage
  • The ages of each spouse
  • The mental condition of the spouses 
  • Contributing factors and circumstances that led to the dissolution of the marriage 
  • The liquid or non-liquid character of all marital property 
  • Dissipation of funds

Other factors which must be considered in coordination with the above are:

  • The debts and liabilities of the spouses 
  • The value of assets, including businesses
  • Whether any assets were hidden

Effectively dividing assets first requires their identification, then the application of these factors. 

Valuing assets

As required by law, all assets must be valued prior to division–these values in addition to the above factors are used to determine what could be an equitable division of the estate.

The most common and significant assets that will be valued during the divorce are: 

  • Marital home 
  • Investment properties
  • Bank accounts 
  • Brokerage accounts
  • Retirement accounts
  • Businesses
  • Vehicles 
  • Personal belongings 
  • Timeshares
  • Furniture and home furnishings

virginia property division lawyer bank account

Valuing businesses

The valuation of a business requires an intimate knowledge of the inner workings of a business, and what factors determine its present cash value. If there are other owners, determining how to equitably split the business through a division or sale can become especially complicated.

Determining the value of the business includes a consideration of the present value of assets, its past earnings, and its future earning potential. If splitting ownership of a business isn’t possible or isn’t in the best interests of the business, complex legal negotiations or litigation might be necessary.

Your Fairfax family law attorney will ensure that the business, and the proportion of ownership that you hold, will be fully accounted for in the divorce proceedings. 

Locating hidden assets

In a state like Virginia with equitable distribution as a law, the potential of a spouse hiding assets, while not common, does happen. If you move forward with a divorce without the assistance of a family law attorney to find hidden assets, the divorce could result in anything but equitable. 

The higher the net worth of a couple, the greater the potential that assets may be lost or hidden in the divorce. Spouses may attempt to obscure assets from equitable distribution by placing them in safety deposit boxes, in offshore accounts, in shell companies, or even with friends or relatives who will help them hide assets. 

virginia property division lawyer assets

New technology has made it increasingly more difficult to hide assets and their financials, while making it easier for those with the knowledge and experience, like a forensic accountant, to track them.

Forensic accountants are capable of tracking your spouse’s finances and spending habits in full detail. If appropriate for your divorce, we have a network of experienced and effective local forensic accountants to call upon to ensure that both spouses achieve a truly equitable split of the assets involved in the marriage.

Identifying hidden assets or hidden spending can be very advantageous in the divorce. For example, if $50,000 of marital property was spent on a hidden gambling habit, the wronged spouse could be entitled to receive half of the marital property that was wasted.

Similarly, it’s possible to recover damages for the dissipation or waste of funds that were spent in anticipation of divorce or separation. 

If you suspect that your spouse is hiding assets or has misused marital funds, an experienced divorce lawyer from Select Law Partners can help. We have worked with extremely complex situations involving strong efforts to obscure assets from the divorce, and identified the assets to ensure our clients recover their fair share. 

Handling shared and individual debts

Within the context of the divorce proceedings, shared and individual debts must be accurately identified in order to ensure an equitable split.

When exploring the spouses’ debts, the following will be considered:

  • The basis for the debts and liabilities 
  • The property that could serve as security for the debts and liabilities 

The incorrect division of debts could leave one spouse paying for the liabilities of the other in a divorce proceeding, so it is essential that they are measured correctly in the divorce. 

Going through a divorce? Make sure your assets are protected.

Whether you’re considering the legal implications of separation or already in the middle of a divorce, it’s essential that you protect your assets and protect yourself against undue debts.

A Fairfax family law attorney from Select Law Partners can protect your best interests and shield you from ongoing negotiations and communications that could take up your time or cause unnecessary stress. 

To learn how Select Law Partners can help you protect your assets in the divorce, schedule a consultation or give us a call at (855) 541-4867 today.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

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