Whether a couple who’s ending their marriage has considerable, valuable assets to divide or relatively few things, the property distribution portion of divorce can be contentious and emotional. One of the key things to determine first is which assets are considered marital property and which are separate property that belongs to just one of the spouses.
Generally, any asset a spouse had prior to the marriage is considered separate property, while those purchased during the marriage are marital property. However, there are always exceptions.
The line between gifts that are separate and marital property isn’t always clear
Sometimes, items that one or both spouses received as gifts are among their most valuable assets – from a monetary and/or sentimental perspective. Gifts given to just one spouse specifically (for example, for their birthday or in celebration of an accomplishment), even if it was after the marriage, are typically theirs to keep.
If the other spouse contributed to the care and maintenance of that gift, however, it may be considered “commingled” with marital assets. For example, maybe one person received a car from their parents, but their spouse often put gas in it and paid for its maintenance using their own or joint funds. Marital funds may have been used to insure it. That spouse could argue that it’s marital property that their husband or wife doesn’t automatically get to keep.
People often assume that any gift that one spouse receives from the other is their separate property. However, Virginia law treats such gifts differently than other gifts given to just one spouse. It states in part, “Separate property is…all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party.”
Gifts that are given to a couple together are generally considered marital property even if only one spouse uses them. Wedding, Christmas, anniversary and housewarming gifts usually fall into this category.
It’s important to know what Virginia law says about the distribution of assets and debts in divorce in case a judge has to make these decisions. However, it’s helpful for couples negotiating their own property distribution agreements with their individual attorneys’ guidance to know the law as well and to know and protect their rights.
