How Are Property and Debt Divided at Divorce?

Virginia statutes provide for the "equitable" distribution of the marital property and marital debt between the parties at the conclusion of the divorce.

"Marital property" consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. "Separate property" is property owned by one party prior to the marriage, property acquired after the parties have separated, or inherited property and/or gifts to one party from a third person. Where "marital property" and "separate property" are mixed together or where the value of "separate property" is increased through the active efforts of either party during the marriage, then such property may be classified as "marital property" or as "part marital and part separate" property. In general, debt is considered “marital debt” if it is in the joint names of the parties and was incurred before the date of the last separation of the parties or, for debt that is in only one party’s name, if the debt was incurred after the date of marriage and before the date of the last separation of the parties. On the other hand, “separate debt” is debt incurred in only one party’s name before the marriage or after the date of the final separation of the parties. In determining whether a debt is marital or separate, the court may also consider the reason a debt was incurred.

 

In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold, or transfer jointly-titled marital property to one of the parties. The courts may also divide responsibility for marital debts. Under Virginia's system of "equitable distribution," the court is not required to divide the marital property or marital debts on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well- being of the family and to the acquisition and care of the marital property. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party's pension or retirement plan that accumulated during the marriage.

 

What is a Property Settlement Agreement?

Rather than having the court rule upon the issues in the case, parties have the option of reaching a voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing the marital property may also be enforceable, but only if they meet certain strict requirements.

 

A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of each spouse in the estate and property of the other. An attorney's skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.

Find an Experienced Attorney

If you are dealing with a divorce, it is critical to have an experienced attorney by your side who has your best interests in mind. Davis Law Group family attorney, SuAnne Hardee Bryant, has been practicing family law and collaborative divorce for decades, and she brings a wealth of knowledge as well as empathy and care to each case she handles. Call us today to set up an appointment with SuAnne.