“I Owned It Before We Got Married….It’s Mine, Isn’t It??”

Many people experiencing divorce for the first time are surprised to learn that property that they owned prior to 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 process called “equitable distribution.”

The divorce and equitable distribution statute, Section 20-107.3 of the Virginia Code, provides that property owned prior to the marriage is separate property. But what of increases in value of the separately owned, premarital property that occur during the marriage? The statute provides that those increases in value are themselves separate property as well, 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 separate property increased in value, then the “burden of proof” shifts to the owning spouse. The owning spouse then “bears the burden” to show that the increases in value resulted from something other than a spouse’s personal efforts or marital investment.

The statute itself is exceedingly complex, and the cases interpreting it are even more so. Every case is specific on its facts. But 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 it comes to questions of classifying property as separate, marital, or part separate and part marital in a divorce, make clear the need to have an experienced attorney on your side. Never assume that property you owned prior to the marriage will be considered all yours in the divorce, just because you owned it prior to the marriage, or because it has always been titled to you. And do not assume that you are not entitled to a share of property titled in your spouses’ name, solely because it is not jointly titled or because your spouse owned it prior to the marriage. Your attorney, knowing all the facts and circumstances, will be able to guide you through the complex and sometimes confusing area of property division in Virginia divorce law.

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