Sandston, VA asked in Divorce and Family Law for Virginia

Q: I owned my before marriage. Is my spouse entitled to any equity accrued to the home. I reside in Virginia

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2 Lawyer Answers
T. Augustus Claus
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A: In Virginia, property you owned before marriage is generally considered separate property, and your spouse may not have a legal claim to the equity accrued in the home. However, several factors can influence this, such as any changes in the property's character during the marriage, contributions made by your spouse, and the state's equitable distribution laws during a divorce. For personalized legal advice tailored to your unique circumstances, it's advisable to consult with an attorney.

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

A: If the spouses are unable to agree on the division of marital property, a judge sitting in equitable distribution incident to a divorce can divide marital property and allocate marital debt. The first step for the judge is to classify all property as separate, marital, or hybrid - a combination of separate and marital. Property acquired during the marriage is presumed to be marital property. Property acquired before the marriage in the name of only one spouse, and property acquired during the marriage by gift or inheritance, is presumed to be separate property, provided the spouse did not transmute it, or a portion of it, into marital property through marital or family use.

With real property, there are various considerations. First, income earned by the spouses is generally marital property, unless it is merely passive income on separate property. Using marital property to pay down the mortgage principal creates marital equity. The appreciation in value of property used for a family or marital purpose, or the value of which is increased by the efforts of either spouse, becomes marital appreciation. This is based on the theory that a husband and wife are an economic partnership. Presumably, they are both working to increase the value of the property of that economic partnership. To the extent that either party expends significant effort toward the appreciation of property in his or her name, that appreciation becomes marital property. The "Brandenburg" formula is a formula used to calculate the proportion of separate and marital property in hybrid property.

Anyone facing separation or divorce in Virginia should consult with an experienced Virginia divorce attorney.

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