Who determines how assets are divided in a divorce?

Asset division is a major part of any Virginia divorce. From real estate to investments, nearly everything owned by spouses must be divided between them.

There are two ways in which asset division may be determined during the divorce process: by a mutual agreement between the spouses, or by allowing the court to decide according to Virginia’s equitable distribution laws. The option available to you will largely depend on whether you and your spouse are willing to negotiate the terms of your divorce together.

Continue reading to learn more about these options, then contact Select Law Partners PLLC for personalized legal guidance.

how are assets divided in a divorce

Option 1: Negotiate a settlement

If you and your spouse are able to collaborate and compromise, you may be able to negotiate a mutually satisfactory agreement regarding the division of your assets without involving the court system. This is done by drafting a Property Settlement Agreement and submitting it to the court for the judge’s final approval.

Property Settlement Agreements

With a Property Settlement Agreement, you and your spouse are free to decide which assets each of you will receive without having to rely on Virginia’s laws of equitable distribution. This allows for greater flexibility and the opportunity to create a solution that works for both of you.

Potential asset division methods

Since couples who opt to negotiate a settlement have more control over how assets are divided in their divorce, they are free to choose from a variety of potential methods for dividing assets.

One option is to split all assets equally between the spouses, with both receiving 50% of the assets in terms of dollar value. Another is to base it on need, where the spouse with the lower earning capacity will receive a more substantial portion of the assets. Some couples may opt for a hybrid method, where some assets are split 50/50 and the remainder is divided according to need or each spouse’s emotional attachment to the items.

Option 2: Let the court decide

When couples are unable to come to a mutual agreement regarding asset division, the decision of how to decide assets will be left to the court system. In these cases, the manner of asset division will be determined according to Virginia’s laws of equitable distribution.

The court has the authority to determine which assets are marital property, separate property, or hybrid property (wherein some portions are marital and some separate). Marital property refers to assets acquired by either spouse during the marriage and is divided between them regardless of whose name appears on the title. It also refers to any property that includes both spouses’ names on the title. Anything acquired prior to the marriage will be classified as separate property belonging to the spouse who originally acquired it.

Virginia’s equitable distribution laws require the court to divide all marital property in a manner that is both fair and equitable. Separate property is not subject to equitable distribution and remains the sole ownership of its original owner.

Factors that may influence the court’s decision

“Equitable” doesn’t necessarily mean equal. While the court may choose to divide marital assets in a 50/50 fashion if it believes that’s what’s fair to both parties, the court’s decision of how assets are divided in a divorce depends on a wide range of factors. These include:

  • The contributions of each party to the family’s well-being, including non-financial contributions such as caregiving
  • The contributions of each party to the acquisition of marital assets
  • Each party’s current financial situation and earning capacity
  • The age and health of each party
  • The debts and liabilities of each party
  • The tax consequences of asset division
  • The duration of the marriage
  • The factors contributing to the divorce, such as adultery or domestic violence

The court will weigh these factors against the appraised value of each asset to come up with the most equitable distribution plan.

Explore your options with our family law attorneys

The way your assets are divided during the divorce process will greatly impact your future financial security. Whether you opt to negotiate a Property Settlement Agreement or allow the court to decide, a Fairfax property division lawyer can help ensure that your interests and rights are protected throughout the process. Contact Select Law Partners, PLLC today at (855) 541-4867 to learn more about your legal options.

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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