Virginia Family Law
A Blog by Jason A Weis, Esq.
Virginia & Maryland Family Law Attorney

Virginia Family Law – Frequently Asked Questions: Property Division


small country home Virginia Family Law   Frequently Asked Questions:  Property DivisionWhat kinds of assets are divided in a divorce?

The Commonwealth of Virginia recognizes three types of property: separate property, marital property and hybrid property.   Generally, in a divorce all of the parties’ respective assets are identified, valued and allocated between the parties.  This includes small things such as pots, pans and silverware; larger things such as furniture, cars, boats and planes; and even larger things such as businesses, real estate and retirement/investment accounts.

 

What is my separate property?

Separate property is generally considered to be any property that was acquired either prior or subsequent to the parties’ marriage or acquired by separate gift or inheritance during the marriage from anyone other than your spouse.  In most cases, you retain your separate property.  Under certain circumstances, however, you can transform (“transmute”) separate property into marital property.

 

What is marital property? 

Marital property is generally considered to be any property acquired during the marriage by either party, regardless of who paid for it.

 

How is property divided?

In the Commonwealthof Virginia, the process of property division is called “equitable distribution.”  In that process, the court, with the help of the parties’ attorneys, will identify all of the parties’ property, value it and divide it.  Courts consider a number of factors in dividing property, such as:

  • The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  • The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  • The duration of the marriage;
  • The ages and physical and mental condition of the parties;
  • The circumstances and factors which contributed to the dissolution of the marriage;
  • How and when specific items of such marital property were acquired;
  • The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  • The liquid or nonliquid character of all marital property;
  • The tax consequences to each party; and
  • The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.

 

Why is valuation important? 

In many ways, the division of property is nothing more than the division of values.  Determining a fair value of your property – whether it’s a closely-held business, an investment/retirement account or your marital home – placing an appropriate value on assets is crucial to achieving a truly equitable division.  Attorneys often have the knowledge, experience, and resources (such as access to accountants, business and property appraisers and other professional experts) to help ensure you present a well-reasoned value to the court.

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

Virginia Family Law – Property Settlement Agreements


pen signing document Virginia Family Law   Property Settlement Agreements Property Settlement Agreements (“PSA”), also called Separation Agreements, are typically omnibus, formal legal documents drawn to address the major tenants of an approaching divorce proceeding.  Ideally, these post-marital agreements, tackle all rights and obligations arising from the parties’ marriage to one another.  Those rights include, among other things, custody and visitation, child and spousal support and property division.   

 Married parties are free to contractually agree upon a resolution of their marital obligations at any time.  Their agreement need not be formal; a “back-of-the-napkin” agreement may prove just as enforceable as a professionally drafted agreement.  To be clear, however, PSAs are contracts and the same rules generally applicable to contracts apply to determine whether a PSA is valid.  In most cases, where an agreement is complete on its face and unambiguous in its terms, a court will uphold it unless fraud, duress or unconscionability exists.

The vast majority of divorce cases resolve with the signing of a PSA.  Why? 

  • The parties have the clearest sense of why their relationship ended and may best recognize how to serve not only their individual interests, but also the interests of their children.

 

  • The parties may appreciate how marital property was acquired or maintained and have equitable notions about how that property should be divided, notwithstanding what the law may provide. 

 

  • Compromise on both sides as directed by the parties (as opposed to a court) may yield an agreement both parties are more likely to honor.  Keep in mind that often the best agreements are those where neither party is particularly happy.

 

  • PSAs offer the prospect of a quick and cost-effective resolution to marital discord, particularly when compared with contested litigation.

 

  • PSAs can be incorporated into divorce decrees, which allows a court to enforce them by way of its contempt power.

 

  • PSAs allow the parties to reach agreements beyond what a court might be willing to address during litigation such as continuation of spousal and child support beyond statutory guidelines or inclusion of detailed visitation, communication and conduct guidelines. 

Though every agreement is separate and distinct, attorney written agreements often incorporate scads of boilerplate provisions that near-universally apply.  At Curran|Moher,P.C., our firm PSA language is quite lengthy; it is the product of continuous optimization and revision, made over the course of several decades of family law practice.  Over the weeks to come, I will address specific provisions that you might consider including in your PSA.  If you have questions about the drafting of a property settlement agreement, please feel free to drop me a line.

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

















About

My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape.  As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution.  More >>>

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Jason A. Weis, Esquire
Curran Moher, P.C.
3554 Chain Bridge Road, Suite 100
Fairfax, Virginia 22030

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Phone: (571) 328-5020

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Legal Disclaimer

Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.