Dividing property in a divorce is rarely easy. When it comes to splitting up assets, especially a family home, couples often disagree with each other, making the process very contentious.
Virginia follows equitable distribution laws when it comes to dividing assets in a divorce. Equitable distribution does not mean assets are split 50/50. Instead, they are divided between the spouses in a way that is equitable, or fair, for each person in terms of the couple's finances.
Couples can agree on what they deem is fair. However, if neither spouse can reach an agreement, the court will decide for them. The court will only split property that is considered community property. Any separate property either spouse owns will be kept separate.
Community Property vs. Separate Property
Community property is any assets or income that either spouse acquired throughout their entire marriage. That means all of the assets they bought while married, are subject to the divorce process.
On the other hand, separate property is anything a spouse owned before being married. This can include gifts and inheritances as well. Separate property cannot be divided during the property division phase of a divorce.
While couples can agree on how to divide some of their assets, highly valuable property like a home can be much harder to separate.
Who Gets the Home?
If one spouse purchased the home before being married, they might think it is separate property, and therefore, they will get to keep it after the divorce is finalized. However, this isn't necessarily true. There are a few situations which can determine who will get the house.
One Spouse Purchased the Home Before Marriage
If the one spouse purchased the house, but marital assets were used to pay the house off or improve the house, then things can get complicated. Typically, the court will not force the spouse to give up the home, but they might order them to pay their spouse a share of the property.
Both Spouses Own the Home and Want to Sell It
When both spouses own the home, it is, of course, considered community property. In the instance that both spouses want to sell the house, it is a relatively simple process. Once the home is sold, the court might split the proceeds equally between each spouse. However, in certain circumstances, the judge might decide to award a more significant share to one spouse over the other.
Both Spouses Own the Home, and Only One Wants to Keep It
However, if only one spouse wants to keep the home, there are still several steps the couple must take. First, they will have to refinance the remaining mortgage balance of the house, because the other spouse's name will need to be removed from any liability on the home. Also, the other spouse's portion of the equity will most likely need to be refinanced since they are entitled to half of the equity. This would be the easiest solution because it doesn't require the spouse keeping the house to have to pay the other spouse's portion in cash.
Both Spouses Own the Home, and Both Want to Keep It
In cases where both spouses own the home, and both want to keep the house, it can get more complicated. In this situation, the court will have to make the decision since a family home is community property. The decision will be made based on what the court thinks is fair for either spouse. With this kind of arrangement, all other property will be taken into account as well to make sure all assets are equitably distributed.
Need Help With Your Divorce?
Virginia's divorce laws can be confusing, especially when dealing with property division. However, a Suffolk divorce attorney can help you through the divorce process. At Bush & Taylor, P.C. we will ensure your assets are protected.
Call us today at (757) 926-0078 if you need legal assistance during your divorce.