Virginia Divorce & Property Rights Laws

by Cindy Chung
A Virginia property settlement agreement voluntarily establishes each spouse's property rights.

A Virginia property settlement agreement voluntarily establishes each spouse's property rights.

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Financial negotiations often affect a divorce, particularly if spouses cannot agree on how to divide their property. In Virginia, if spouses can negotiate their property rights amicably and come to an agreement, the court will honor their wishes and incorporate their agreement into the final divorce decree. However, if spouses cannot agree on how to divide their property, a state court will divide the couple's property according to Virginia law.

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Marital Property Rights in Virginia

In general, both spouses have a right to marital property. Virginia defines marital property as any property obtained by either or both spouses during the marriage, unless the property qualifies for an exception under state law or meets the state's definition of separate property. Additionally, both spouses have a right to property held between the two parties in joint title. In a divorce, Virginia requires an equitable distribution of the couple's marital property. This does not necessarily mean the court must divide marital property equally, but rather in a manner that is equitable according to the circumstances.

Separate Property in Virginia

Virginia recognizes separate property as property acquired by either spouse before marriage. In most cases, separate property remains the property of the spouse who originally acquired it. Property gained during marriage may also be separate property if a spouse acquired the property as an inheritance or gift. Additionally, if a husband or wife owns separate property that increased in value during the marriage, the additional value will likely remain separate property unless the increase in value is a direct result of one or both spouse's actions because a spouse's labor is considered property of the marital estate. In this case, a court might classify the property as part marital property and part separate property.

Divorce and Property Distribution

If spouses can agree on how to divide their property, they may be able to avoid a divorce trial and a Virginia court dividing property for them. Spouses can voluntarily establish each party's property rights through a written contract, known as a property settlement agreement, which must be signed by both parties and notarized. However, if the spouses cannot agree on how to divide their marital property or resolve related issues such as spousal support, they will need a Virginia court to decide these issues for them. A state court will make an equitable distribution of the couple's property after reviewing the family's financial and legal circumstances. The factors the court will consider include each spouse's contributions to household finances and family life, duration of the marriage, and each spouse's age, physical health and mental condition.

Marital Misconduct and Property Rights

Marital misconduct may affect property rights during divorce proceedings. Virginia courts consider each spouse's role in causing the end of a marriage. Although a spouse may obtain a no-fault divorce in Virginia, state law allows the court to consider the fault-based conduct of either spouse when determining spousal support and property distribution. The court may consider adultery, spousal abandonment or desertion, spousal cruelty and acts that cause the other spouse reasonable fear of bodily harm. If a spouse can prove the other spouse caused harm to the marriage by engaging in a specified type of misconduct, the court may allow the misconduct to affect the spouses' property rights.