Does wife get half of everything in divorce in Virginia?

Updated: Feb 12, 2023

The question is premised upon a gender bias which simply does not exist in the law. The proper question is whether my spouse gets half of everything in divorce in Virginia. Divorce in Virginia is equal opportunity disappointment so gender does not matter. Regardless, this is a common question and I will answer it as best that I can. Although, please keep in mind, as always, this is not specific legal advice but rather general information to help you develop a better understanding of the storm on your horizon. To talk about your situation I would strongly encourage you to speak with competent legal counsel as each situation is different. You don’t have to talk with us just because you read our Blog. Of course we would love to speak with you but we understand that there are thousands of lawyers. I would just ask that you look at their qualifications to make sure that the attorney knows what he/she is talking about and is not just dabbling in family law. If you would like a consultation with us please feel free to call or text us at 757-454-2110. If you mention Blog post 22 we will waive the consultation fee.

So let’s talk for a moment about the law in Virginia regarding division of assets. In the United States, the laws break down, broadly speaking, into two types of division: community property and equitable distribution. Community property means, generally, that anything that comes into the marriage become marital property and, as a result, it gets divided equally between the spouses. Let me give you A COMPLETE HYPOTHETICAL. Bill Gates – started Microsoft – gets married tomorrow without a Prenup. At the time of the marriage he is worth $1 billion. Mrs. Gates and him enjoy marital bliss for 10 years. During those years, his wealth goes from $1 billion to $101 billion. When they get divorced in a community property state, she would likely be entitled to one-half of the $100 billion wealth accumulation during the marriage. Doesn’t seem fair? Again, the premise of the question is off which can cause confusion. It does not matter if it is fair, in community property states it is the law. We understand he put the work in before the marriage and the fact Microsoft was a force of nature prior to their marriage. Community property states favor efficient division rather than a “fair” or, another word would be, equitable division which typically requires more litigation to flesh out the facts to be able to determine what would be fair.

This leads to good and bad news. The good news is Virginia is not a community property state and requires the time to flesh out evidence based upon specific factors set out in the law. The bad news is Virginia is an equitable distribution state which requires the effort to find the evidence to present the information to entice the judge to adopt your perspective of what is fair. This is the bad news because of the expense in time, money, and peace of mind this process typically requires.

What that means is that you get out of it is what you put into it. Now that can be a bit tricky. Some people are in the traditional paradigm of one spouse was the stay-at-home parent and one worked to pay the bills. The initial fear is because the other spouse made all the money then they get all of the property. As we mentioned above, equitable distribution is a process where all factors are considered and who made the money to buy the property is but one of those factors. Another factor considers the non-monetary benefits provided to the marital unit. The typical nonmonetary benefits, in this traditional paradigm, are maintain and running the home especially when children are involved. The meals, laundry, scheduling, and other tasks which take up the day of running a household creates the marital equity in the wealth of the family regardless of who actually made the money. Although, there is another factor which focuses on the monetary and nonmonetary contributions to accumulation and maintenance of the property.

There are other factors which focus on aspects of the marriage beyond how the property was acquired. The age, health and education of the spouses is required to be considered. This is because it helps project the likelihood of how each person is going to be able to set up their next chapter. The reason for the divorce and whether there was any marital fault which negatively impacted the financial well-being or other aspect of the martial wealth. The nature of the property, for example are we talking about a bank account or real estate with equity, and whether there will be tax consequences which would undermine the equitable division of the property. This liquid asset (bank account) versus nonliquid asset (real estate) is a significant factor to consider because one spouse may do better with cash rather than having to deal with maintaining real estate. This is because real estate typically has liens and debts attached to them which leads us to another factor. The division of debts, mortgages included, must be considered because one spouse maybe in a better position to manage the marital debts versus the other, even if this is not the person who caused the debts to be incurred.

Virginia’s equitable distribution process is designed to take each marriage on their individual characteristics, good and bad, to create the most equitable division possible. Of course, this requires a significant amount of work which is expensive and tends to create more conflict along way. Therefore, it is best to be reasonable in evaluating the big picture and not lose sight of the ultimate goal. This goal being creating a fair and equitable division for both parties. This requires acknowledging the strengths and weaknesses of your respective position as well as understand the other perspective. Our experience has allowed us to develop the expertise necessary to be able to help folks evaluate their situation to assist with beginning to develop a plan to fully engage in this process.

This article was written with Ryan E. Thum, Esq., who is a family law attorney as well. He can be reached at https://www.rethumlaw.com/ or at 757-818-8293 if you would like to chat with him.

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