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Status of Property During Separation
During separation, to the extent that the parties agree, they are free
to divide assets and debts Property in Divorce. The court, however, will not usually intervene
to apportion property during separation. At the request of either party,
the court will enter an order preventing either party from transferring,
dissipating or wasting marital assets, or assets that may be marital assets.
For joint accounts, unless the account is frozen, either
party can access it and remove the assets.
For personal property, each party can be held accountable
for what is in their possession, however, if a party claims they do not
have an item, it can be difficult to disprove. Real property is the exception:
The Marital Home
The court is reluctant to make decisions affecting property until the
final hearing, except to the extent necessary to preserve the marital
estate. For example, if the spouse residing in the house needed additional
funds to make the mortgage payment, the court can order a party (or the
parties can agree) that a mortgage contribution will be paid and the court
can order, or the parties can agree that the spouse residing in the house
shall maintain the house and pay the mortgage, taxes and insurance.
If the parties cannot agree on who will reside in the
marital home, if anyone, the court will decide. Generally speaking, the
person with more time with the children will be awarded exclusive use
and possession of the house. This does not mean that they will get the
house free and clear in a final hearing, only that they have the right
to live in the home without the interference and presence of the other
party. If there are no children, it is likely that the court will give
exclusive use and possession to the party who can best afford the house.
Final Division of Assets and Debts incident to Divorce
In Virginia, we have Equitable Distribution of Property. Not “equal”
distribution...“equitable” distribution. What does this mean?
It means that the court considers many factors about the assets themselves
and who contributed in what way to the marriage. After considering the
factors set forth in the Code of Virginia, the Judge makes a decision
as to whom will get what. Who gets the couch, who gets the chair; who
gets how much of the retirement assets, how the marital debt will be divided,
and what the final disposition will be of the marital home, if there is
one. The result may be 50/50, it may be 60/40, 90/10, or any other configuration.
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| Division
of Assets FAQ |
| Question: |
What is marital property and what isn? |
| Answer: |
Marital property is any property acquired during the marriage or with marital assets. |
| Question: |
What is separate property? |
| Answer: |
Primarily property inherited by a party which is not gifted or co-mingled inextricably with marital property, and property acquired before marriage or any anything derived from it. |
| Question: |
What about taxes and other things that must be dealt with during separation, will the court intervene? |
| Answer: |
Often not. Parties are encouraged to agree on such matters. If they cannot, then they will make the best decision they can and, if an inequity has resulted from the acts of one or both parties, the issues will be addressed at the final hearing. |
| Question: |
What if we have forgotten to consider something, or something unexpected comes up after we have reached an agreement or after the court has ruled? |
| Answer: |
If it is after an agreement is entered, see Contract Dispute in the Post Divorce section. If it is after a court has ruled based on the evidence presented at trial, you may have an avenue for the court to make a subsequent ruling, however, it will be largely based on the specific circumstances at hand. |
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