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What property rights are created by marriage and divorce?


The end of a marriage typically raises a variety of strong emotions, including sadness, bitterness, anger, resentment and depression. Marital dissolution also usually has financial implications for both spouses and any children involved, with issues such as spousal support, child support, and property division to be determined and then finalized in a divorce decree. As an equitable distribution state, Virginia requires that marital property and assets be fairly divided at the time of divorce.

What is considered marital property? All items of substantial value acquired by a couple during the course of their marriage are considered marital property. Separate property is that acquired by individuals before marriage, acquired as inheritance or through gifting during marriage or acquired after a couple has separated. However, if separate property is mingled with marital property or increases in value through the efforts of the other spouse, then that property is also regarded as marital property. For instance, if a wife uses her own funds to pay for property taxes on real estate inherited by her husband, then that property is considered marital property.

How can a court divide property? A court can give a monetary award to one individual and also order that property be sold or divided. It can also order that jointly titled marital property be transferred to one spouse. Equitable distribution under Virginia law does not necessarily mean equal division, only fair division. A court can also consider several factors listed in Virginia's statutes, including the monetary contribution that each spouse made to their family's well-being.

What about retirement plans? Both these and pensions acquired during the couple's marriage are also subject to court-approved division. Virginia law, however, does not allow a spouse to receive more than 50 percent of the other spouse's pension or retirement benefits at the time of divorce.

Source: Virginia State Bar, "Divorce in Virginia," Accessed on Dec.14, 2015

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