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Virginia uses what is called ‘equitable distribution’ to divide marital property at the time of a divorce. “Equitable” means ‘fair’, not necessarily equal.

In most cases where there aren’t any strong compelling arguments, the division of marital property will probably be equal (or close to equal) because that is also fair. But there are individual situations that can make a difference.

When you are getting a divorce, everything that you and your spouse own is viewed as one of three categories. It is either the Husband’s separate property, or the Wife’s separate property, or it is ‘marital property’. While this sounds simple, it can get quite complicated.

In general, any property that you owned before you got married, obtained during the marriage by a gift or inheritance, or you obtained after your separation, will be termed your ’separate’ property and will remain the property of the separate owner. (note that I said ‘in general’…It is very important to keep good records so that separate property can remain identified as separate.)

Anything else is termed ‘marital’ property. This ‘marital property’ is what most people fight about during a divorce.

It is also important to note that ‘property’ means anything of value and not just your house. That means that things such as your stamp collection, any retirement benefits, bank accounts, copyrights or patents will be divided between you.

Code of Virginia section 20-107.3 is the statute that provides direction for the property distribution. Paragraph E lists 11 criteria that the court uses when it makes the determination about how to divide marital property. As in many areas of the law, there is a ‘catch all’ criteria that allows the court to consider ‘Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.’

The best arrangement is for the parties to agree to a property settlement that they have negotiated themselves. It is quicker, cheaper, and probably closer to what each party really wants. But, if the parties cannot agree, the court will make a decision about the property division and the parties will be required to follow that court decision.

And the court’s decision will be ‘equitable’ based on all of the information that is available to the judge.

This is a very complicated area of the law that can seem deceptively simple.

Even if you have already come to an agreement with your spouse, it is always a good idea to have your own attorney review that agreement to make sure it contains everything that is needed legally to make sure the agreement can be enforced, and that your interests have been protected. After all, a settlement agreement is really nothing more than a contract, and you would always want to have any other type of contract reviewed before signing it…..right?