In Virginia, the assets of the spouses are divided through a process called equitable distribution. In cases with little assets or just a home and salaried spouses, the couples themselves can often agree on the property division. In complex cases, our firm will work to properly identify marital assets, assign the assets the correct value and make sure that distribution of the property works to your advantage. The Law Office of Afsana Chowdhury works with experts to determine true value and uses our knowledge and skill to negotiate a fair distribution.
Marital vs. Separate Property
Only marital assets are subject to distribution. The separate assets of each spouse are returned to the spouse who acquired them. The marital assets are valued and a percentage is assigned to each spouse. The starting point for division of property is 50/50 but many factors can alter those percentages. The key dates are the date of the marriage and the date of the separation. Assets are considered marital if they acquired after marriage but before separation; otherwise they’re considered separate assets. In some cases it can be hard to tell. For example, often spouses will contribute their pre-marital money to the down payment of a home.
Separate Assets: In addition to premarital assets and post-separation acquisitions; gifts and inheritances during marriage are also considered separate and belong to the spouse they were given to.
Marital assets: The starting point is the equity in the home and the current bank accounts. Retirement benefits, pensions and annuities are usually marital assets too even though they don’t vest until retirement age. Often, a special court document called a QDRO (a qualified domestic relations order) will be prepared for retirement benefits to determine the present value. An interest in a business is also a likely marital asset.
Hybrid Assets: Some assets are part separate and part marital. These assets can be complicated to value. Our firm knows how to work around the complications and determine the correct separation value.
Marital debts: It’s also important to figure which debts are separate and which ones are marital. Who is liable for each debt is a key factor in any property division case.
Factors that Determine the Property Split
There are many factors that judges and mediators use to determine how much, if any, of a shift there should be from an equal split. These factors include but are not limited to:
- “The monetary and non-monetary contributions made by each spouse to ‘the well-being of the family’ and to the ‘acquisition and care and maintenance’ of the marital property.” Nonmonetary contribution refers to things like looking after the children, taking care of the house and supporting the spouse who works.
- The length of the marriage. The shorter the marriage, the more likely the split will be 50/50.
- The ages and physical and mental condition of the parties. Poor health may justify deviating from an equal split.
- The reasons for the divorce. This includes any fault grounds for divorce such as adultery, cruelty, desertion or a felony conviction.
- The debts of each spouse and whether any marital assets are security for those debts. Typically, the home is subject to a mortgage.
- Whether assets can be sold easily, or are non-liquid
- Tax considerations
- How the assets were acquired
How the Assets are Actually Split
Once the marital assets are identified and the percentage each spouse gets is determined there is still the issue of how the assets will be divided. In many cases, there are practical considerations such as making sure the children have a home with the parent who has primary physical custody and selling or trading assets that are easy to distribute ahead of others, like pensions that may not have vested yet. If a spouse has a business interest that provides an income to the spouse, then instead of selling the whole business or the stock, the owner of the business might agree to buy-out his/her interest to the other spouse.
Contact the Law Office of Afsana Chowdhury
Our firm will work to identify the assets, value them properly and arrange a split that is fair and practical. When possible, we will negotiate the property division so an agreement can be entered. When necessary, our firm will try all aspects of equitable division before the family law judge. Your spouse may try to hide assets. It is essential, if you have assets to be divided, that you see a lawyer as soon as you begin thinking about a divorce. Our office offers an initial phone consultation and affordable rates. Contact our firm at (703) 271-6519 today or schedule a consultation online.