Midlothian, VA asked in Divorce for Virginia

Q: My home is owned by me and my parents. My wife left me and resides out of state. Is she entitled to part of my home?

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2 Lawyer Answers
James H. Wilson Jr.
James H. Wilson Jr.
  • Glen Allen, VA
  • Licensed in Virginia

A: If spouses are not able to reach an agreement on how to divide their property and debts, those matters can be submitted to a judge's decision through the process of equitable distribution incident to a divorce case.

Title is not determinative in equitable distribution in Virginia. That means a spouse may have rights in property even though he or she is not on the title, if the court classifies the property as marital or hybrid - part marital and part separate. That classification depends on a number of factors, including when the property was acquired, how it was a acquired, how its value or income was generated, and how the spouses treated it. These factors also create presumptions, which affect the burden of proof - which spouse has to prove something to the judge. As this analysis can be complex and technical, it is important to consult with an experienced Virginia divorce lawyer about your prospects in equitable distribution.

1 user found this answer helpful

Thomas H. Roberts
Thomas H. Roberts
  • Richmond, VA
  • Licensed in Virginia

A: Possibly. You should seek legal counsel.

Here's a nice overview from the Virginia State Bar providing an overview:

Marital property is defined as all jointly-owned property and all other property, other than separate property, acquired from the date of the marriage to the date of separation. Typical examples of marital property are the marital home titled in the names of both spouses or a retirement account accumulated during the marriage even if the account is only in the name of one spouse.

Separate property includes all property acquired by either spouse before the marriage andr all property acquired during the marriage by inheritance or by a gift from a source other than one’s spouse. Typical examples of separate property are an automobile that was given to one of the spouses by a parent and titled in the name of the receiving spouse, an inheritance from a family member, and cash gifts from third parties but only if such gifts and inheritances are then maintained separately from other marital property. Gifts from one spouse to the other spouse such as jewelry are marital property.

The third category of property is property that is part marital and part separate. The application of the law to this category of property is often very complex. Some examples of property that is part marital and part separate include:

a. Income received from separate property during the marriage provided such income is attributable to the personal efforts of either spouse. For example, if one spouse inherits a business prior to or during the marriage and either or both spouses work in the business producing income, such income may be marital property notwithstanding that the business is separate property.

b. The increase in value of separate property during the marriage may be marital property to the extent that marital property or the personal efforts of either party contributed to such increases. Any such personal efforts must be substantial, and result in significant appreciation. For example, if one spouse owned a business before the marriage, and during the marriage either party, through his or her personal efforts, caused the value of the business to increase substantially, the increase in value may be marital property.

Personal effort of either spouse is defined as labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional, or marketing activity applied directly to the separate property of either spouse.

Where marital property and separate property are mixed together by either separate property receiving marital property or marital property receiving separate property, specific rules of classification apply. For example, one spouse receives an inheritance and deposits that inheritance to the family savings account. The marital property is receiving the separate property, so the inheritance becomes marital property. However, if the spouse who received the inheritance retraces the inheritance with bank records, etc., and it was not a gift, it may maintain its separate nature. Another example of mixed property would be a home purchased by the parties where one spouse used their separate assets to contribute to the purchase but the mortgage on the property is in both names and is paid off during the marriage with marital funds. In such a circumstance, the law provides the means to analyze what portion of the asset is marital and what portion is separate. Only the marital portion would be subject to equitable distribution.

Useful Info from the Virginia State Bar:

https://www.vsb.org/site/publications/financial-issues-in-divorce and https://www.vsb.org/site/publications/divorce-in-virginia/


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