Divorce In Virginia
Part 2
More and more, divorce actions in Virginia focus on the division of property interests, as opposed to the grounds for dissolving the marriage. In 1982, the Commonwealth of Virginia joined ranks with the majority of states in the Union and adopted "equitable distribution" as the basis for dividing the martial estate accumulated by divorcing spouses. The courts are quick to remind litigants that the controlling term is "equitable" distribution, and not "equal" distribution; therefore, marital assets are to be divided in a manner that is considered "fair," based upon the circumstances of acquisition with respect to each asset.
ASSET CLASSIFICATION
The first step in equitable distribution is to classify each property interest as either: (1) separate; (2) marital; or (3) hybrid. Property that is classified as "separate" is not subject to distribution by the courts, and is owned by one spouse free from any legal claim by the other spouse. Virginia's equitable distribution statute defines "separate" property as any asset that falls within one of the following categories:
1. Owned by a spouse prior to the date of marriage; or
2. Acquired by a spouse after the last date of separation; or
3. Inherited by a spouse during the marriage, so long as it is maintained in the sole name of such spouse; or
4. Gifted to one spouse from someone other than the other spouse (gifts between spouses are classified as "marital").
The same equitable distribution statute defines "marital" property as any asset that is acquired after the date of marriage, and before the date of last separation. Such "asset" often includes such tangible property as vehicles, furniture, real estate and investment accounts. However, "marital" property also includes such intangible property as an interest in retirement plans, stock options, and interests in various business ventures. Obviously, this latter category of marital property is often the source of much contention among divorcing spouses - and their attorneys.
Perhaps the most difficult category of property interests, both in terms of proof and in valuation, is that property classified as "hybrid." Such an asset is most often created when a spouse either uses "separate" property to acquire "marital" property, or otherwise commingles "separate" property with "marital" property. Frequent examples include the contribution of separate property toward the acquisition of a marital home, or the contribution of separate funds to a marital investment account, or a 401-K plan that was earned in part by employment before the marriage, and in part after the last separation. In each situation of "hybrid" property, it is incumbent upon the contributing spouse to be able to produce documentation tracing the contribution of separate property in order to keep such asset considered as "separate" upon equitable distribution by the court. Otherwise, the entire asset will be treated as "marital".
ASSET DIVISION
Once
the "pool" of marital assets has been identified and valued, it
is left to the court to equitably divide the same. In so doing, the presiding
Judge must consider all of the evidence presented by each spouse with respect
to the eleven (11) specific factors set forth in the equitable distribution
statute. The more significant of these factors include: (1) the monetary and
non-monetary contributions made by each spouse toward the acquisition of the
marital assets; (2) the monetary and non-monetary contributions made by each
spouse toward the well-being of the family; and (3) the circumstances that
led to the breakup of the marriage.
Based upon all of the evidence regarding the aforesaid factors, the
court will rule with respect to a fair division of assets, an allocation of
any marital debt, and, if warranted, grant one spouse a monetary award payable
by the other spouse. In equitable distribution, the court can also order the
sale of the marital home, or other parcels of real estate, and determine an
appropriate division of the proceeds from such a sale.
ATTORNEYS FEES
In deciding an equitable distribution case, the court also has the authority to assess one spouse with the responsibility to reimburse the other spouse a portion of the attorney's fees and costs incurred by that spouse in the divorce proceedings. The amount of any such award is often dependent upon the Judge's perception as to the degree of "reasonableness" exhibited by the respective spouses during the divorce proceedings. Another significant factor is the Judge's determination as to which spouse has the better financial ability to pay such fees and costs.
It should always be remembered, however, that while a request can be made to the presiding Judge for an assessment of attorney's fees, courts are notoriously conservative in their willingness to make such awards.