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How is marital property determined?

While in the process of a divorce, one of the more difficult hurdles to overcome is often that of property division. It is important to make every effort to keep emotions out of the picture, to consider the other side's interests and try to make fair and reasonable requests to try to keep the procedure smooth and to minimize disputes or arguments that may arise.

The first step in property division is to determine whether your state is a community property state, or common law property state. Common law is more common in the U.S. Virginia is a common law property state. This means that property acquired by only one spouse is owned solely by that spouse. This is applicable to property that is put in the name of one person, such as the title of a car or property. If the title includes both names, each sides owns half of the property.

This distinction is also important in the instance of the death of one spouse. If a will has been created, the property is distributed according to the wishes of the deceased in the person's will. If there is no will, the property will go to probate, where if "joint tenancy with the right of survivorship or "tenancy by the entirety" is established, the property will be awarded to the surviving spouse.

If a couple separates or divorces, the courts make the rulings regarding how the property is divided. The decision by the courts may be bypassed if couples have made a prenuptial or postnuptial agreement prior to the divorce. It is important to recognize that the division of property is seldom a seamless transition, and it may be in your best interest to seek the advice and representation from a professional familiar with family law to help you along the way.

Source:, "Who Owns What in Marital Property?" Accessed Nov. 8, 2016

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