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What is the difference between marital and separate property?

Getting divorce usually means dividing up many valuable assets and significant debts, but not everything you own is necessarily going to be split in two. As with most other states, Virginia law recognizes the difference between “marital property” and “separate property.”

As those terms imply, “marital property” refers to those items the court deems belongs to both spouses, and “separate property” belongs to each spouse individually. When a divorce gets contentious, often it is because one spouse believes an asset is marital property, and the other spouse insists it is not.

In general, income and other property acquired during the marriage are considered to be marital property, as are things purchased with income earned during the marriage period. This is true even if only one spouse worked; the idea is that the nonworking spouse made the working spouse’s career possible, such as by running the household and taking primary care of the children. Thus, the nonworking spouse should not be deprived of the assets earned during the marriage.

On the other hand, separate property can be one of two things: items a spouse owned before getting married, and things acquired by gift, bequest or devise. For a gift to be separate property, it must be specifically given to one spouse alone. Keep in mind that things you purchased with separate property funds during your marriage is generally also separate property. But if you and your spouse comingle your money in joint accounts, it is going to be tough to prove.

If you believe your spouse is claiming part ownership of things he or she is not entitled to, you will need an experienced divorce lawyer to fight to make sure your property division is equitable, as it is supposed to be under the law.

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