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Dividing marital property from separate property

Virginia law requires divorcing couples to divide their marital property in a way that meets standards of fairness. But first the parties have to figure out what the marital property is.

Marital property consists of all assets and debts that are owned jointly by the parties. This can include the family home and a car listed in the name of both spouses. It can also include a retirement account, even if it is listed in the name of only one spouse. As long as it accumulated value during the marriage, it is likely considered part of the marital property.

In fact, it may be more important to ask what property is not part of the marital property. Separate property generally consists of assets accumulated by either spouse before the marriage. It can also include certain types of property acquired during the marriage, depending upon the way they were acquired. Assets acquired through inheritance are generally considered to be separate property, as are gifts received from someone other than the spouse.

It can be very difficult to divide separate property from marital property when two types of assets have been mingled together. This is a common situation in many marriages where the parties lived together and shared finances for a long time.

For example, one spouse might inherit $10,000 from a deceased relative and then deposit the check into the couple’s joint savings account. The couple later draws on the account when they pay $35,000 for a new car. Upon divorce, they must find a way to divide the $10,000 of separate property from the marital property.

How do they divide the two? Most likely, they divide them through long negotiation. The key is for both parties to provide a detailed accounting of all their assets and debts. Often, this includes getting professionals to appraise the value of homes, stock options and other complex assets. Once the parties have a value placed on every asset, they can start negotiating how to divide the total.

If all this sounds like a lot of work, that’s because it is. A family law attorney with experience in property division can help people work toward a settlement that respects their rights and gives them the resources they need to start on the next chapter in life.