Division of Assets

Status of Property During Separation

During separation, to the extent that the parties agree, they are free to divide assets and debts prior to 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.

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 do not wish to continue residing together but cannot agree on which person will remain in the home, either can ask the court to allow them to stay and exclude the other person. In determining whether to provide the requested relief, the court may consider resources of each party, the availability of alternate housing, and timesharing with the children.

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, 60/40, 90/10, or any other configuration.

For more information, schedule a consultation or call 703.279.5140.



What is marital property and what is not?

Marital property is any property acquired during the marriage or with marital assets.

What is separate property?

Primarily property inherited by a party which is not gifted or co-mingled inextricably with marital property, and property acquired before marriage or anything derived from it. 

What about taxes and other things that must be dealt with during separation, will the court intervene?

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.

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?

If it is after an agreement is entered, please see Contract Disputes 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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