Marital versus Separate Property in Virginia Divorces
In Virginia, marital property is subject to equitable distribution. Separate property is not. Marital property is defined as all property acquired during the marriage up until the date of separation. Separate property is property that was acquired prior to the marriage and continues to be maintained as separate or property that is acquired during the marriage from a third party such as an inheritance or a gift.
If separate property is commingled with marital property, then it may lose its character. To the extent that separate property can be clearly traced, then the party who had the separate property may be able to retrieve the value of said property. However, the burden is on that party to show a clear tracing trail.
A significant amount of attorney time, forensic accountant time, paralegal time and costs are incurred in sorting out what properties are marital and what properties are separate.
Prior to a marriage, it is important to have clear records as to what you bring into the marriage. It also advisable in many situations to do a premarital agreement clarifying that these properties will remain the individual property of that particular party.
During the marriage it is important to maintain the separate character of property showing that it is not commingled and transmuted into marital property. Keeping a proper paper trail is very important.