Division of Property: Yours, Mine, or Commingled?

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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 Hatley, P.C., have the experience and knowledge needed to support you and make that happen.

About Melone Hatley, P.C.

Melone Hatley, 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 Children, Traffic Ticket Defense, DUI/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.

Rebecca Melone

Written By Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters.
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