Fairfax Property Division Attorneys

Delivering Outstanding Results in Property & Debt Division

Property and debt division are complex areas of family law. This phase of a divorce case is referred to as “equitable distribution.” The division of marital property and marital debt is typically the most complex and time-consuming part of a divorce, and it is often the most hotly contested issue as well.

Since 1981, the Fairfax property and debt division lawyers at Wexell Milman have been achieving excellent results on behalf of our clients. We understand family law in Virginia and how it tends to be applied by our courts. We are experienced in all aspects of the property and debt division process, and we have an extensive network of professionals with whom we work to value and/or classify our clients’ property.

Need help with property division? Contact us today at (703) 454-5448 to schedule your consultation and protect your assets.

Understanding Marital Property & Debt Division in Divorce

Outside of court, divorcing spouses are free to agree in writing to just about any arrangement to divide marital assets and debts. However, marital property and debt division in a contested divorce is governed by the principles of equitable distribution in Virginia. A court order to divide marital assets and debts in a certain way will be based on what is equitable under the circumstances after consideration of numerous statutory factors — not necessarily an equal division.

In contested and uncontested divorce cases alike, there are tremendous benefits to having an experienced attorney represent you.

Working with expert consultants and witnesses as needed, our attorneys conduct an exhaustive inventory of each party’s assets and debts and determine whether they should be classified as separate, marital, or hybrid (part marital and part separate) property. The next step is to establish the value of the assets and debts that are subject to division. This may involve working with business valuation specialists, real estate appraisers, or other financial experts, and includes the consideration of separate property that increased in value during the marriage.

At Wexell Milman, our property and debt division attorneys in Fairfax also consider tax issues and other factors that need to be accounted for in any final agreement or court order. Often, this level of thoroughness pays off in the form of a favorable out-of-court property settlement or court order following a trial.

Impact of Virginia's Equitable Distribution Laws

Virginia follows the principle of equitable distribution when dividing property and debts in a divorce. This means the court aims to divide assets and liabilities in a way that is fair, not necessarily equal.

• Equitable vs. Equal: In many cases, a 50/50 split may not be appropriate. For example, one spouse might receive a larger share of property if they contributed more financially or if they have a greater need for the asset after divorce.
• Fairness Based on Circumstances: The court takes into account various factors, like the length of the marriage, the standard of living, and the needs of both spouses, to ensure a fair division.

Types of Property in Divorce

In Virginia, property is categorized into three types: marital property, separate property, and hybrid property.

• Marital Property: Generally, any property acquired during the marriage is considered marital property, even if it is in one spouse's name. This includes:
  • Homes, cars, furniture, and other personal property
  • Income and retirement benefits earned during the marriage
• Separate Property: Property owned by one spouse before the marriage or received as a gift or inheritance during the marriage is typically considered separate property. For example:
  • An inheritance received by one spouse
  • Property purchased with funds from before the marriage
• Hybrid Property: Sometimes property may be partly marital and partly separate, such as a home bought with separate funds that increased in value during the marriage.

Factors Considered in Property Division

When dividing property, Virginia courts look at several factors to ensure fairness:

• Length of Marriage: Longer marriages may result in a more equal division of assets.
• Contributions of Each Spouse: Contributions can be financial or non-financial, such as homemaking or child-rearing.
• Financial Needs: If one spouse is in greater financial need, the court may award them more property or spousal support.
• Standard of Living: The court aims to maintain a similar lifestyle post-divorce, particularly for the spouse who might have fewer financial resources.

These factors help guide the court in making a fair decision that aligns with the specifics of each case.

FAQ - Fairfax Property Division Attorneys

What types of property can be considered marital property in Virginia?

• Marital property includes any assets or debts acquired during the marriage, such as the family home, vehicles, retirement accounts, and joint bank accounts. Property obtained before the marriage, through inheritance, or as a gift is usually considered separate property, but this can be complicated in certain cases.

What happens if one spouse hides assets during a divorce?

• If a spouse hides or misrepresents assets, the court can take action to address the fraud. If the hidden assets are discovered, the court may redistribute the property or impose penalties on the dishonest spouse, including fines or changes to the final property division.

Can we divide property without going to court?

• Yes, it’s possible to divide property without a court trial. In uncontested divorces, spouses can agree on the division of assets and debts with the help of their attorneys. If the agreement is reasonable, the court will likely approve it. Mediation is another option to reach an agreement outside of court.

How are retirement accounts divided in a divorce?

• Retirement accounts, such as 401(k)s or pensions, are generally considered marital property and are subject to division. The court will determine how the retirement benefits are divided based on the length of the marriage and each spouse’s contributions. A Qualified Domestic Relations Order (QDRO) is usually needed to divide these accounts.

Can my spouse get part of my separate property?

• While separate property is usually not subject to division, there are cases where separate property may be considered marital property, such as when it has been commingled with marital property or if its value has increased during the marriage. If this happens, the court may decide to divide it as part of the marital estate. 

What if we agree on property division but need help with the paperwork?

• Even if you and your spouse reach an agreement on property division, it is essential to have an attorney assist with drafting the necessary legal documents to ensure the agreement is enforceable. An attorney can help with the settlement agreement, property division terms, and filing the appropriate paperwork with the court.

How does the length of the marriage affect property division?

• The length of the marriage is a significant factor in property division in Virginia. Generally, the longer the marriage, the more likely it is that property accumulated during the marriage will be divided equally or close to equally. The court will consider how long the couple has been married and how long they have contributed to the accumulation of marital property.

Assistance with Partition Actions for Jointly Owned Property

Our firm also offers assistance to domestic (non-married) partners in dividing jointly owned property — either in-kind (where the property is split into two separately-owned properties) or by sale (where an in-kind division is not feasible or practical, and the court orders the asset or property to be sold instead). In legal terms, this is known as a “partition action.”

Facing complex property division in your divorce? Contact us now at (703) 454-5448 for trusted legal guidance and support.