Q: My husband and I were together but not married when we bought our home in 2010. Now married, am I entitled to equity?

A: Equitable distribution is a 3 step process in Virginia. First, the judge classifies all property as marital, separate, or hybrid - a mix of marital and separate. The judge also classifies debt as marital or separate. Second, the judge gives a valuation to all items of marital and hybrid property. Third, the judge performs an equitable distribution of property and allocation of debt.

Title does not control the classification of property, although it may create presumptions. A presumption affects the burden of proof, who must prove something to overcome the presumption.

Property that was originally separate may become marital or hybrid through transmutation. If a property is originally separate, and nothing is done with it during the marriage to change its character, it remains separate. This could include passive appreciation. Any time a spouse devotes efforts toward the increase in value of separate property, or production of income from separate property, that increase or income can become marital property. That is because marriage is considered an economic partnership. Each spouse contributes his or her good faith efforts to the good of the partnership. To the extent that a party attempts to enrich himself or herself at the expense of the partnership, the fruits of those efforts become marital property.

If marital funds, for instance postnuptial income, are used to pay down financing secured by a property, that gain in equity could be classified as marital property. The appreciation in value of property used or treated as marital property, for instance, the marital residence, could similarly be classified as marital property.

As equitable distribution can be a complex process, anyone facing separation or divorce in Virginia should consult with an experienced Virginia divorce lawyer.