If my husband owned land before we married and then we built a home on it, is it marital property?
Full Question:
Answer:
Virginia is an equitable distribution state in which the court, if the parties have not entered into a settlement agreement, will divide the marital property equitably between the parties, taking into consideration many factors such as; the contribution of each spouse to the acquisition, care, and maintenance of the marital property, the length of the marriage, etc. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in equitably distributing property.
Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
The relevant Virginia statute is as follows:
§ 20-107.3. Court may decree as to property of the
parties.
A. Upon decreeing the dissolution of a marriage, and also
upon decreeing a divorce from the bond of matrimony, or upon
the filing with the court as provided in subsection J of a
certified copy of a final divorce decree obtained without the
Commonwealth, the court, upon request of either party, shall
determine the legal title as between the parties, and the
ownership and value of all property, real or personal,
tangible or intangible, of the parties and shall consider
which of such property is separate property, which is marital
property, and which is part separate and part marital property
in accordance with subdivision A 3. The court shall determine
the value of any such property as of the date of the
evidentiary hearing on the evaluation issue. Upon motion of
either party made no less than 21 days before the evidentiary
hearing the court may, for good cause shown, in order to
attain the ends of justice, order that a different valuation
date be used. The court, on the motion of either party, may
retain jurisdiction in the final decree of divorce to
adjudicate the remedy provided by this section when the court
determines that such action is clearly necessary, and all
decrees heretofore entered retaining such jurisdiction are
validated.
1. Separate property is (i) all property, real and
personal, acquired by either party before the marriage;
(ii) all property acquired during the marriage by bequest,
devise, descent, survivorship or gift from a source other
than the other party; (iii) all property acquired during the
marriage in exchange for or from the proceeds of sale of
separate property, provided that such property acquired
during the marriage is maintained as separate property; and
(iv) that part of any property classified as separate
pursuant to subdivision A 3. Income received from separate
property during the marriage is separate property if not
attributable to the personal effort of either party. The
increase in value of separate property during the marriage is
separate property, unless marital property or the personal
efforts of either party have contributed to such increases
and then only to the extent of the increases in value
attributable to such contributions. The personal efforts of
either party must be significant and result in substantial
appreciation of the separate property if any increase in
value attributable thereto is to be considered marital
property.
2. Marital property is (i) all property titled in the names
of both parties, whether as joint tenants, tenants by the
entirety or otherwise, except as provided by subdivision A 3,
(ii) that part of any property classified as marital pursuant
to subdivision A 3, or (iii) all other property acquired by
each party during the marriage which is not separate property
as defined above. All property including that portion of
pensions, profit-sharing or deferred compensation or
retirement plans of whatever nature, acquired by either spouse
during the marriage, and before the last separation of the
parties, if at such time or thereafter at least one of the
parties intends that the separation be permanent, is presumed
to be marital property in the absence of satisfactory evidence
that it is separate property. For purposes of this section
marital property is presumed to be jointly owned unless there
is a deed, title or other clear indicia that it is not jointly
owned.
3. The court shall classify property as part marital
property and part separate property as follows:
a. In the case of income received from separate property
during the marriage, such income shall be marital property
only to the extent it is attributable to the personal efforts
of either party. In the case of the increase in value of
separate property during the marriage, such increase in value
shall be marital property only to the extent that marital
property or the personal efforts of either party have
contributed to such increases, provided that any such personal
efforts must be significant and result in substantial
appreciation of the separate property.
For purposes of this subdivision, the nonowning spouse
shall bear the burden of proving that (i) contributions of
marital property or personal effort were made and (ii) the
separate property increased in value. Once this burden of
proof is met, the owning spouse shall bear the burden of
proving that the increase in value or some portion thereof was
not caused by contributions of marital property or personal
effort.
"Personal effort" of a party shall be deemed to be labor,
effort, inventiveness, physical or intellectual skill,
creativity, or managerial, promotional or marketing activity
applied directly to the separate property of either party.
b. In the case of any pension, profit-sharing, or deferred
compensation plan or retirement benefit, the marital share as
defined in subsection G shall be marital property.
c. In the case of any personal injury or workers'
compensation recovery of either party, the marital share as
defined in subsection H of this section shall be marital
property.
d. When marital property and separate property are
commingled by contributing one category of property to
another, resulting in the loss of identity of the contributed
property, the classification of the contributed property shall
be transmuted to the category of property receiving the
contribution. However, to the extent the contributed property
is retraceable by a preponderance of the evidence and was not
a gift, such contributed property shall retain its original
classification.
e. When marital property and separate property are
commingled into newly acquired property resulting in the loss
of identity of the contributing properties, the commingled
property shall be deemed transmuted to marital property.
However, to the extent the contributed property is retraceable
by a preponderance of the evidence and was not a gift, the
contributed property shall retain its original classification.
f. When separate property is retitled in the joint names of
the parties, the retitled property shall be deemed transmuted
to marital property. However, to the extent the property is
retraceable by a preponderance of the evidence and was not a
gift, the retitled property shall retain its original
classification.
g. When the separate property of one party is commingled
into the separate property of the other party, or the separate
property of each party is commingled into newly acquired
property, to the extent the contributed property is
retraceable by a preponderance of the evidence and was not a
gift, each party shall be reimbursed the value of the
contributed property in any award made pursuant to this
section.
h. Subdivisions A 3 d, e and f of this section shall apply
to jointly owned property. No presumption of gift shall arise
under this section where (i) separate property is commingled
with jointly owned property; (ii) newly acquired property is
conveyed into joint ownership; or (iii) existing property is
conveyed or retitled into joint ownership. For purposes of
this subdivision A3, property is jointly owned when it is
titled in the name of both parties, whether as joint tenants,
tenants by the entireties, or otherwise.
B. For the purposes of this section only, both parties
shall be deemed to have rights and interests in the marital
property. However, such interests and rights shall not attach
to the legal title of such property and are only to be used as
a consideration in determining a monetary award, if any, as
provided in this section.
C. Except as provided in subsection G, the court shall have
no authority to order the division or transfer of separate
property or marital property which is not jointly owned. The
court may, based upon the factors listed in subsection E,
divide or transfer or order the division or transfer, or both,
of jointly owned marital property, or any part thereof. The
court shall also have the authority to apportion and order the
payment of the debts of the parties, or either of them, that
are incurred prior to the dissolution of the marriage, based
upon the factors listed in subsection E.
As a means of dividing or transferring the jointly owned
marital property, the court may transfer or order the transfer
of real or personal property or any interest therein to one of
the parties, permit either party to purchase the interest of
the other and direct the allocation of the proceeds, provided
the party purchasing the interest of the other agrees to
assume any indebtedness secured by the property, or order its
sale by private sale by the parties, through such agent as the
court shall direct, or by public sale as the court shall
direct without the necessity for partition. All decrees
entered prior to July 1, 1991, which are final and not subject
to further proceedings on appeal as of that date, which divide
or transfer or order the division or transfer of property
directly between the parties are hereby validated and deemed
self-executing. All orders or decrees which divide or transfer
or order division or transfer of real property between the
parties shall be recorded and indexed in the names of the
parties in the appropriate grantor and grantee indexes in the
land records in the clerk's office of the circuit court of the
county or city in which the property is located.
D. In addition, based upon (i) the equities and the rights
and interests of each party in the marital property, and
(ii) the factors listed in subsection E, the court has the
power to grant a monetary award, payable either in a lump sum
or over a period of time in fixed amounts, to either party.
The party against whom a monetary award is made may satisfy
the award, in whole or in part, by conveyance of property,
subject to the approval of the court. An award entered
pursuant to this subsection shall constitute a judgment
within the meaning of § 8.01-426 and shall not be docketed by
the clerk unless the decree so directs. The provisions of
§ 8.01-382, relating to interest on judgments, shall apply
unless the court orders otherwise.
Any marital property, which has been considered or ordered
transferred in granting the monetary award under this section,
shall not thereafter be the subject of a suit between the same
parties to transfer title or possession of such property.
E. The amount of any division or transfer of jointly owned
marital property, and the amount of any monetary award, the
apportionment of marital debts, and the method of payment
shall be determined by the court after consideration of the
following factors:
1. The contributions, monetary and nonmonetary, of each
party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each
party in the acquisition and care and maintenance of such
marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the
parties;
5. The circumstances and factors which contributed to the
dissolution of the marriage, specifically including any ground
for divorce under the provisions of subdivisions (1), (3) or
(6) of § 20-91 or § 20-95;
6. How and when specific items of such marital property
were acquired;
7. The debts and liabilities of each spouse, the basis for
such debts and liabilities, and the property which may serve
as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital
property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of
the parties for a nonmarital separate purpose or the
dissipation of such funds, when such was done in anticipation
of divorce or separation or after the last separation of the
parties; and
11. Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair and
equitable monetary award.
F. The court shall determine the amount of any such
monetary award without regard to maintenance and support
awarded for either party or support for the minor children of
both parties and shall, after or at the time of such
determination and upon motion of either party, consider
whether an order for support and maintenance of a spouse or
children shall be entered or, if previously entered, whether
such order shall be modified or vacated.
G. In addition to the monetary award made pursuant to
subsection D, and upon consideration of the factors set forth
in subsection E:
1. The court may direct payment of a percentage of the
marital share of any pension, profit-sharing or deferred
compensation plan or retirement benefits, whether vested or
nonvested, which constitutes marital property and whether
payable in a lump sum or over a period of time. The court may
order direct payment of such percentage of the marital share
by direct assignment to a party from the employer trustee,
plan administrator or other holder of the benefits. However,
the court shall only direct that payment be made as such
benefits are payable. No such payment shall exceed 50 percent
of the marital share of the cash benefits actually received by
the party against whom such award is made. "Marital share"
means that portion of the total interest, the right to which
was earned during the marriage and before the last separation
of the parties, if at such time or thereafter at least one of
the parties intended that the separation be permanent.
2. To the extent permitted by federal or other applicable
law, the court may order a party to designate a spouse or
former spouse as irrevocable beneficiary during the lifetime
of the beneficiary of all or a portion of any survivor benefit
or annuity plan of whatsoever nature, but not to include a
life insurance policy. The court, in its discretion, shall
determine as between the parties, who shall bear the costs of
maintaining such plan.
H. In addition to the monetary award made pursuant to
subsection D, and upon consideration of the factors set forth
in subsection E, the court may direct payment of a percentage
of the marital share of any personal injury or workers'
compensation recovery of either party, whether such recovery
is payable in a lump sum or over a period of time. However,
the court shall only direct that payment be made as such
recovery is payable, whether by settlement, jury award, court
award, or otherwise. "Marital share" means that part of the
total personal injury or workers' compensation recovery
attributable to lost wages or medical expenses to the extent
not covered by health insurance accruing during the marriage
and before the last separation of the parties, if at such time
or thereafter at least one of the parties intended that the
separation be permanent.
I. Nothing in this section shall be construed to prevent
the affirmation, ratification and incorporation in a decree of
an agreement between the parties pursuant to §§ 20-109 and
20-109.1. Agreements, otherwise valid as contracts, entered
into between spouses prior to the marriage shall be recognized
and enforceable.
J. A court of proper jurisdiction under § 20-96 may
exercise the powers conferred by this section after a court of
a foreign jurisdiction has decreed a dissolution of a marriage
or a divorce from the bond of matrimony, if (i) one of the
parties was domiciled in this Commonwealth when the foreign
proceedings were commenced, (ii) the foreign court did not
have personal jurisdiction over the party domiciled in the
Commonwealth, (iii) the proceeding is initiated within two
years of receipt of notice of the foreign decree by the party
domiciled in the Commonwealth, and (iv) the court obtains
personal jurisdiction over the parties pursuant to
subdivision A 9 of § 8.01-328.1, or in any other manner
permitted by law.
K. The court shall have the continuing authority and
jurisdiction to make any additional orders necessary to
effectuate and enforce any order entered pursuant to this
section, including the authority to:
1. Order a date certain for transfer or division of any
jointly owned property under subsection C or payment of any
monetary award under subsection D;
2. Punish as contempt of court any willful failure of a
party to comply with the provisions of any order made by the
court under this section;
3. Appoint a special commissioner to transfer any property
under subsection C where a party refuses to comply with the
order of the court to transfer such property; and
4. Modify any order entered in a case filed on or after
July 1, 1982, intended to affect or divide any pension,
profit-sharing or deferred compensation plan or retirement
benefits pursuant to the United States Internal Revenue Code
or other applicable federal laws, only for the purpose of
establishing or maintaining the order as a qualified domestic
relations order or to revise or conform its terms so as to
effectuate the expressed intent of the order.