Many people experiencing divorce for the first time are surprised to learn that property they owned before the marriage–even property that has remained solely titled to them throughout the marriage—may be considered partially or entirely “marital” property by the court in the divorce. Once the property is deemed “marital,” it is subject to division by the Court in the “equitable distribution.”
The divorce and equitable distribution statute, Section 20-107.3 of the Virginia Code, provides that property owned before the marriage is separate property. But what of increases in the value of the separately owned, premarital property that occurs during the marriage? The statute provides that those increases in value are separate property, unless the “non-owning” spouse proves certain things. If the non-owning spouse proves that either of the spouses contributed “personal efforts” or marital property to the separate property during the marriage and that the individual property increased in value, then the “burden of proof” shifts to the spouse. The owning spouse then “bears the burden” to show that the value increases resulted from something other than a spouse’s personal efforts or marital investment.
The statute is exceedingly complex, and the cases interpreting it are even more so. Every case is specific in its facts. However, the above outlines how increases in the value of separate, premarital property occurring during the marriage can be counted as marital property and subject to distribution by the court. If a piece of property increases in value during the marriage, the court may make a “monetary award” of a portion of its value to the non-owning spouse, even though the property was never jointly titled.
The complexity of the equitable distribution statute, particularly when classifying property as separate, marital, or part separate and part marital in a divorce, makes clear the need to have an experienced attorney on your side. Never assume that property you owned before the marriage will be considered all yours in the divorce, just because you owned it before the marriage or because it has always been titled to you. Please do not assume that you are not entitled to a share of property in your spouse’s name solely because it is not jointly titled or because your spouse owned it before the marriage. Knowing all the facts and circumstances, your family law attorney can guide you through the complex and sometimes confusing area of property division in Virginia divorce law.
