Month: January 2018

Division of Property: Yours, Mine, or Commingled?

In Virginia, a married couple’s assets and property are generally divided into two categories:
  • marital (also referred to as joint property)
  • separate property
Marital property is property and income that is acquired or received during a marriage by either spouse, regardless of whose name is on the title. This includes earnings, retirement contributions, homes, cars, and any other items that are purchased or earned during the marriage.  Marital property is jointly owned and will be subject to division if you get divorced. Separate property is property that one spouse owns before the marriage, and is not subject to division in a divorce.  Certain types of property acquired during a couple’s marriage may also be considered separate property.  This includes gifts and inheritances. In a divorce, separate property is generally awarded to the spouse who owns it. However, when spouses commingle separate property with marital property, it can lose its separate status. Commingling occurs when one spouse’s separate property is mixed with marital property. This can happen when a spouse uses marital funds to improve, maintain, or contribute to separate property. Let’s look at a real life example:  One spouse purchases a house before the marriage.  This is considered separate property. You get married and later use marital funds to pay the mortgage, remodel the kitchen, or make other improvements to the home.  Your spouse now has gained an interest in the value of the home. Because the house, which was a separate asset when you married, has been commingled with marital assets, it may be treated as marital property, not separate property, during a divorce. When divorcing, be prepared to prove that non-marital property is your own and was not commingled during the duration of your marriage. This typically isn’t a case of “what’s mine is mine and what’s yours is yours.” If this sounds confusing and complicated, that’s because it is. The line between marital and non-marital property divisions tends to blur, especially if you have acquired a number of assets during your marriage. Because this is a complicated area of family law and divorce, it is an area where you really want to seek effective legal counsel.

How do the courts distribute property?

It’s always best if you and your spouse can come to an agreement on the division of property before the divorce, or even before the marriage. You won’t need to involve the courts and the process will likely be much smoother. However, this isn’t always realistic, especially if you have a number of assets to consider. In the case that you need assistance from the court, your marital property becomes subject to the concept of equitable distribution. The court begins by looking at the value of the property and then consider the following factors:
  • Length of marriage
  • Why the marriage ended
  • The income and economic circumstances of each spouse
  • When the property was obtained
  • How the property was obtained
  • The effort put  forth by each spouse to obtain the property
  • The age of each spouse
  • The health (mental and physical) of each spouse
  • The total value of all property interests of each spouse
  • Familial contributions made by each spouse over the course of the marriage
  • Provisions made by the court regarding personal property and alimony
  • Anything else they deem necessary to making an equitable division
Keep in mind that an equitable division does not mean a 50/50 split.  The Commonwealth of Virginia is not a community property state where marital property is more or less divided evenly between the two parties.  Equitable means fair, not even. The court may also give a monetary award, or a lump sum, based on the value of marital property. It cannot transfer ownership, but a spouse may transfer property on their accord.

How can I prevent my separate property from being commingled?

The easiest way to prevent commingling is through a prenuptial agreement. A prenup states definitively who gets what in the event of divorce. Most prenuptial agreements are upheld, regardless of whether spouses commingled their property or not.  Though it may be hard to think about divorce when you are engaged, planning your wedding, and looking forward to your new life together, if you are bringing considerable assets to the marriage, it might be something to consider.  Remember, a prenup doesn’t just protect you.  It also protects your soon-to-be spouse. Arriving at an equitable solution for the division of marital property isn’t always easy.  But, you owe it to yourself to fight for what you’ve worked so hard to achieve, both before and during the marriage. The legal team at Melone Law, P.C., have the experience and knowledge needed to support you and make that happen.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about commingled property and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Choosing the Right Divorce Lawyer

After a lot of soul searching, you’ve decided it’s time to file for divorce.  Now you have another big decision on your hands, choosing the right divorce attorney. This decision will likely be one of the most important in your life. Therefore, you need an effective plan to follow in order to select the right attorney who will look after your interests and protect your rights. To help you, here are 5 critical steps to finding the ideal divorce lawyer for your case:

Does you firm specialize in family law?

Here are a few questions you’ll want to ask potential law firms during your initial consultation.
  • What areas does a law firm specialize in?
  • Is family law one of those specialties?
  • Do you have partners that focus on divorce cases?
  • Do your divorce attorneys have any sort of certification in the area of family law?
You’ll find there are many law firms who do take on divorce cases but do not specialize in family law. Divorce law, especially in the Commonwealth of Virginia, is a complex area with new developments and constant changes. The laws are regularly revised by the legislature or even overturned by the courts. A family law attorney will be up to date on the law, and understand what the changes may mean to your case. You want a legal team with in-depth knowledge of divorce law.  An attorney with a superficial understanding is not what you’re looking for.

Consider Their Experience

Talk with your attorney about his/her experience. As we mentioned earlier, family law is a complex area, with many moving parts, including things like distribution of property, custody, child support, alimony, visitation, protective orders, and you want an attorney who has knowledge and expertise working with family law cases.  Experience means that he/she is more likely to keep up with changes to the law, know the local courts, judges and how the law is interpreted not only in Virginia, but in your local jurisdiction.

Look for Transparency in Fees

Divorce can be expensive and no one likes to be charged more than they expect. Finding the right divorce attorney requires due diligence on your part. You may be tempted to skip over asking about fees when you find a lawyer with whom you feel comfortable. However, it’s important to get all the information you can about their services and what is included in their fee. Don’t be afraid to ask questions about the law firm’s pricing structure. You’re looking for someone who is comfortable and transparent about talking about fees, retainers, payment schedules, what’s included and what is not.  An attorney who is hesitant to disclose this information is most probably not your best choice. Ask whether the lawyer charges an hourly or flat rate and what the payment terms or plans look like. Ask for an estimate as to how much a divorce like yours might cost. Be sure to ask if you’ll need to pay for time spent on the telephone and with other members of their practice including administrative people and paralegals. Estimate costs for other professionals such as psychologists, business valuators, accountants, and forensic experts if applicable to your case. While obtaining this information requires more effort, it also means you’ll have a clear understanding of what to expect as far as fees and will avoid unwelcome surprises.

Determine familiarity with divorces cases like yours

No two divorce cases are exactly the same. It stands to reason that divorce cases are as unique as the individuals involved. However, there is some common overlap between cases. You want an attorney who has experience with cases like yours. They should be familiar working with the major issues of your case and know how to navigate complicated matters like property division, jointly owned businesses and custody issues. Be upfront and honest with your attorney about the ins and outs of your case and possible special circumstances. There’s no reason to be embarrassed. An attorney can’t help you if they don’t understand the intricacies of your specific situation.  The last thing you want is a lawyer who has never dealt with situations like your own. Your divorce is not the time to be someone’s guinea pig.

Inquire about Their Knowledge of Local Courts and Judges

Which would you prefer: a lawyer who’s just getting to know the local courts and judges, or one who is deeply familiar with local family courts?  Obviously, just about everyone would prefer an attorney who has local knowledge and experience.  You’ll want to ask how well they know any judges who may be involved with your case.  The right divorce lawyer will be able to develop their strategy in a way that both suits your case and aligns with the local court system.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about our divorce attorneys and family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

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