Thousands of married couples file for divorce each year in Virginia, and many of them are surprised to discover that marital estates are not always divided equally in the Mountain State. Western states like Texas, California and Arizona have strict community property laws that require the assets acquired during a marriage to be divided equally in a divorce, but Virginia is what is known as an equitable distribution state. This means that marital assets must be divided fairly, but not necessarily equally.

Another issue that frequently arises during property division negotiations in Virginia is what is and what is not a marital asset. Assets acquired during the course of a marriage are generally considered part of the marital estate while assets that spouses owned before they walked down the aisle are considered separate property. However, some assets, such as inheritances and gifts, may be considered separate property even if they were received during the marriage.

Matters become even thornier when separate property becomes commingled with the marital estate. This could happen when an inheritance or financial gift is deposited in a joint bank account or income earned during a marriage is used to improve an asset, such as a home, that one of the spouses owned before getting married. Unwinding commingled assets can be a complex, difficult and time-consuming process.

Couples can usually avoid leaving these decisions to a family law judge by reaching an amicable settlement at the negotiating table, but this can be challenging when divorces are acrimonious and property division negotiations become contentious. Attorneys with experience in this area may urge divorcing couples to persist in negotiations to avoid the costs and uncertain outcomes of prolonged litigation, and they could suggest alternative venues like mediation or collaborative divorce when more traditional approaches fail to produce a result.