Burden of Proof in Virginia Divorce Cases - Separate vs. Martial Property
Monday, April 7, 2014

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.  


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