When a couple gets divorced, one of the questions they have is, what happens to our stuff? How does that work?
Parties have several options available to them in dividing personal property (private, movable property, i.e., not real estate) upon divorce. Parties may draft a Property Settlement Agreement (PSA), divvying up the assets contractually, usually with the help of attorneys representing each party. The PSA will lay out what personal property each party will receive upon divorce.
Division of Marital Property Without a PSA
In the absence of a PSA, property is divided by a Virginia court under equitable distribution laws. Virginia is an equitable distribution jurisdiction (versus other states, like California, who work with “community property” laws). The court only can divide martial property. In Virginia, marital property is:
- Property titled in the names of both parties, whether as joint tenants, tenants by the entirety, etc;
- Separate property that “co-mingles” with marital property, losing its identity as separate property; and
- All other property acquired by each party during the marriage which is not separate property.
Wedding rings and other jewelry given from one spouse to the other during the marriage (even if it was a gift) are marital property and subject to equitable distribution by the court. Similarly, gifts acquired by both parties together during the marriage (such as wedding registry gifts) are considered
Division of Separate Property
The court cannot transfer or otherwise require transfer or partition of separate property; separate property is owned by each respective spouse and kept by that spouse after divorce. In Virginia, separate property is:
- All real and personal property acquired by either party before the marriage;
- All property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party
- All property acquired during the marriage in exchange for or from the proceeds of the sale of separate property, provided it is maintained separately; and
- Property acquired after the last separation.
An engagement ring is considered a pre-marital gift, and is, therefore, the separate property of the recipient, belonging solely to him or her upon divorce.
Based upon the equities of each party in marital property and on statutory factors, a court may grant a monetary award. In Virginia, the court considers marital fault as a factor in distributing property, and there is no rule that the marital property is divided “50-50.” Furthermore, the amount of such award is without regard to maintenance and support awarded by either party or support of minor children of both parties. The court may direct payment of up to fifty percent of retirement benefits, and may also direct payment of a percentage of the marital share of any personal injury or workers’ compensation award. As with divorce matter, it is important to consult a qualified divorce attorney when dealing with issues of property division.