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 and 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
- 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.
- 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
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
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.
Generally, marital property and marital debts are valued as of the date of the evidentiary hearing or trial;
however, there are some exceptions to this rule. In addition, a party may request that the court hearing the
divorce trial use a different valuation date and such a request may be granted depending on the specific
Valuing the marital share of some retirement assets can be complex and may require use of a valuation date
other than the date of trial or evidentiary hearing. The marital share of these plans is comprised of
contributions to the plan and earnings on those contributions from the date of the marriage to the date of
separation. There may be further adjustments to value resulting from market changes from the date of
separation until the asset is divided. Virginia law provides that the court can order that the non-employee
spouse receive up to fifty percent of the marital share of any pension, profit-sharing or deferred
compensation plan or retirement benefits. Typical examples of marital retirement accounts include company
401(K) plans or defined benefit plans such as those earned during service in the military or civil service,
other defined contribution plans and individual retirement accounts (IRAs).
Some marital debts also require use of a valuation date that is not the date of the evidentiary hearing and
instead the date of the parties’ final separation is the valuation date. For example, post separation credit
card charges are not marital debts unless the charges are related to some marital purpose.
The tools of valuation include real estate appraisal reports, income tax returns, National Automobile
Dealers’ Association (NADA) or similar valuation services, tax assessments, the financial page of
periodicals for stocks, bonds and mutual funds, forensic accountant opinions on the value of businesses, and
credit card statements. Gathering copies of these types of documents is an excellent way to prepare for an
initial meeting with an attorney.
The following factors are required to be considered in dividing marital property and debts:
The contributions, monetary and non-monetary, of each party to the well-being of the family;
- The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance
of such marital property of the parties;
- The duration of the marriage;
- The ages and physical and mental condition of the parties;
- The circumstances and factors which contributed to the dissolution of the marriage, specifically
including certain grounds of divorce;
- How and when specific items of such marital property were acquired;
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property
which may serve as security for such debts and liabilities;
- The liquid or non-liquid character of all marital property;
- The tax consequences of dividing marital property;
- The use or expenditure of marital property by either of the parties for non-marital separate purpose or
the dissipation of such funds when such was done in anticipation of divorce or separation or after the
last separation of the parties; and
- Such other factors as the Court deems necessary or appropriate to consider in order to arrive at a fair
and equitable monetary award.
Equitable division of marital property and debts does not automatically mean an equal division. The purpose
of these factors is to enable the court to have criteria to determine how the property and debts accumulated
during the marital partnership should be fairly divided.