How Are Assets Divided in Divorce?

After the challenges of figuring out child custody and alimony payments, dividing assets is the next biggest difficulty of getting a divorce. Deciding who gets what when the marriage partnership ends can be tricky, especially if significant assets are involved, such as retail investments, stocks, brokerage accounts, or family businesses. Even in the most amenable divorce, surrendering assets to your ex-spouse can be a difficult prospect. The situation is even worse if the divorce is contentious.

To help you navigate this challenging aspect of divorce, it’s helpful to have an understanding of how assets are divided according to Virginia law.

Marital vs. Separate Assets

It’s vital to recognize the difference between marital and separate property to ensure you receive the assets you are entitled to in a divorce. In general, all earnings made during the marriage and any property acquired with those earnings are considered marital assets, regardless of ownership and titles. On the other hand, any assets obtained prior to the marriage or on a strictly individual basis during the marriage are considered separate assets.

Examples of separate assets include:

  • Any property owned by either spouse before the marriage
  • Any business owned by either spouse prior to getting married, although some value may be considered marital property if the company grew during the marriage or both spouses helped run it
  • Proceeds of a pension that vested, or became legally obtainable by the pensioner, before the marriage
  • Inheritance received by either spouse, whether before or during the marriage
  • Gifts received from a third party to one spouse in particular, such as your mother passing down a family heirloom
  • Property purchased with money from separate bank accounts during the marriage
  • Awards for pain and suffering in a personal injury case

NOTE: Separate property can lose its “separate” status if you mix it with marital property—for instance, if you deposit inheritance money into a joint savings account or re-title your car to add your spouse’s name. These examples of commingling mean the assets will most likely be considered marital property during divorce proceedings.

Dividing Marital & Separate Assets

In a divorce, each spouse is entitled to their separate assets. Then, marital assets are divided as equally as possible between each spouse. The couple may decide themselves how to split this property, but if they can’t agree, they can submit a property dispute and allow the court to divide the assets according to Virginia law.

Dividing the Marital Home

A house is the most significant asset many couples share. Deciding who gets to stay and who has to leave is one of the most challenging aspects of getting a divorce. Here are some scenarios to consider:

  • If you have children at home, the law usually favors the parent who spends the most time providing childcare, allowing this spouse to remain in the marital home.
  • If you don’t have children and the house is the separate property of you or your spouse, the owner has the legal right to ask the non-owner to leave.
  • If you don’t have children and you own the home together, you are in the trickiest situation. Neither of you has the right to kick the other out, change the locks, or prohibit entry into the house in any way. The only legal ground for getting a spouse to leave is if he or she commits domestic violence—something you should never falsely claim, or you could be the one asked to leave the house.

In the end, if you can’t decide how to divide the marital home outside of court, a judge will decide for you.

Schedule a Divorce Consultation in Northern Virginia

If you need legal counsel on asset division or are searching for a divorce lawyer in the Northern Virginia area, Graham Law Firm can help. Our team of lawyers has years of experience obtaining favorable outcomes in asset division and divorce and is prepared to help with whatever you need.

Contact us online for a divorce consultation in Northern Virginia. 

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