August 15, 2020

Volume X, Number 228

August 14, 2020

Subscribe to Latest Legal News and Analysis

August 13, 2020

Subscribe to Latest Legal News and Analysis

August 12, 2020

Subscribe to Latest Legal News and Analysis

Burden of Proof in Virginia Divorce Cases - Separate vs. Martial Property

In Virginia, property that is separate, that is property that one of the parties brought into the marriage or was gifted to that party by a third party during the marriage, remains separate during the marriage and that party can retain that asset together with any growth on that asset.  However, to the extent that marital efforts, that is efforts of either party, are made during the marriage or marital contributions, that is monies or other contributions are made to that separate asset during the marriage, then that separate asset may become a hybrid asset and be part separate and part marital. 

Up until the recent Supreme Court of Virginia case of David v. David, (Va., 2014), the burden of proof was on the non-owning spouse to prove that the marital contributions were significant and more importantly, that the marital contributions during the marriage were the proximate cause of the increase in the value of that asset.  For example, if the Husband had a business that he owned prior to the marriage and he worked that business during the marriage, and the business increased significantly in value, the Wife under the old law in Virginia had the burden to show that it was the Husband’s efforts that increased the value of the property.  Since David, supra, the burden has now shifted to the Husband to prove that his efforts did not increase the value of the asset.  All the Wife needs do is show that he exerted significant efforts and that the business went up in value.  The burden then shifts to the Husband (owning spouse) to show that the increase was not due to his efforts.  This is a significant change under Virginia law and puts the burden clearly on the owning spouse to show that the asset is still separate and the value did not increase as a result of any marital efforts.  

© 2020 Odin, Feldman & Pittleman, P.C.National Law Review, Volume IV, Number 97


About this Author

Leslye Fenton, family law, real estate, attorney, Odin Feldman, law firm

As a seasoned lawyer and mediator, Leslye Fenton knows how to effectively communicate, negotiate, and resolve conflict. Her training in mediation combined with her legal skills enables her to help clients identify their goals and develop strategies to obtain their desired results. She believes in listening carefully to her clients to identify their key interests. She then provides them with a comprehensive understanding of the legal issues confronting them, and helps them determine how these interests can be protected and promoted. Leslye’s mediation training gives her a unique perspective...

David M. Zangrilli, Jr., Odin Feldman Law Firm, Family Law Attorney

A  family law attorney for over 10 years, David Zangrilli strives to meet each individual client’s specific needs in the most efficient, thorough, and cost-effective manner possible by providing sound advice, reasonable expectations, and zealous advocacy. David’s approach to his Family and Domestic law practice involves thoroughly educating his clients on the legal process, likely outcomes in court, and reasonable settlement options.  

J. Patrick McConnell, Odin Feldman Law Firm, Family Law Attorney

With more than 30 years of experience in Family & Domestic Relations law, Patrick McConnell represents clients who have particularly complicated matters that cross state or international boundaries, or that involve complex financial issues. His background in finance and knowledge of tax law provide insight that can lead to innovative solutions. When necessary, Patrick teams with an attorney from the firm’s Estate Planning or Corporate practice areas to assist with the preservation of wealth for his clients' children or their future generations.

Patrick is chair of the Family...

Kristina  A. Cruz, Family Law Attorney, Odin Feldman Law Firm

Kristina Cruz believes the best approach to assist her clients is to blend her legal knowledge with each individual client's unique personal objectives to ensure that every relationship is built upon a foundation of mutual trust and client input into the legal process. A background in journalism combined with powerful listening skills enable Kristina to understand the full extent of a family or domestic relation situation and communicate those matters succinctly and effectively in the courtroom. Clearly comprehending all aspects of each individual case gives Kristina the ability to...