In Virginia family law cases, one issue that frequently arises is property division. While the law has certain parameters for marital property and separate property and they might seem clear, there can be confusion if both sides claim they have the right to certain properties or proceeds from the property increasing in value as part of a divorce. This is specifically addressed under the law of the Commonwealth. Understanding how to address these complex challenges is a vital aspect to a fair outcome.
When can the court decide that property is part marital and part separate?
If there was income derived from separate property while the couple was married, it will be considered marital property based on the contribution of the party who did not initially bring it into the marriage. That means if the property was acquired by one spouse and was separate property and the other had a role in its increase in value, then that increase in value will be considered marital property. This is categorized as personal effort.
Personal effort is considered any labor, innovation, skill, management and creativity to spark that increase. The contribution is the key factor. The spouse who did not own the property must prove that the contributions were made and there was an increase in value. If that is shown, the spouse who owned the property originally must show that the increase in value was not due to personal effort or other contributions by the non-owning spouse.
Another concern is “commingling.” This means that there was a combination of assets that may have resulted in newly accrued property. Commingled property will generally be considered marital property. If separate property has been retitled to be in the name of both parties, it will be marital property.
Having legal assistance is key with complicated family law concerns
Although there are other parts of a divorce that will come to the forefront and undoubtedly take precedence such as child custody, child support and visitation, property division is a common source for dispute. This is especially problematic if there was property that was initially separate, but increased in value due to claims of personal effort from the other spouse. For those who are facing a dispute over property division, it may be wise to consult with an experienced legal professional who understands all areas of family law.