Virginia, like most states, is an equitable distribution state. This means that in any divorce, the court has the authority to determine what is marital property and – more importantly – how it should be distributed among the divorcing spouses.
Property division can be a very contentious issue in any divorce, perhaps second only to child custody matters. Just as with any other aspect of divorce, an abundance of myths and misconceptions about how equitable distribution works abound.
Let’s take a look at a few of these most egregious myths so that readers like you can be better prepared to face your divorce.
1. “Equitable Distribution Means Property Is Split 50/50”
The first misconception we’ll address is one that concerns a misunderstanding of what “equitable” means. It sounds and looks very close to the word “equal,” so anyone can be forgiven for making this mistake.
In this context, though, equitable actually means something more along the lines of “fair” or “reasonable.” It should be no surprise, then, that an equitable distribution of marital property is one that strives to be as fair as possible to each spouse.
If one spouse earns a lot of money and the other doesn’t, an equitable distribution might give the latter more of the marital property. This isn’t equal, but the court considers it to be reasonable or fair because the first spouse makes so much more money.
Perhaps adding to this confusion is the fact that some states, like California, do split marital property equally. This is not the case for Virginia or any of the majority of U.S. states that recognize equitable distribution.
2. “Debts Belong to the Spouse Who Created Them”
It can be comforting to think that you won’t be responsible for any insane debts your spouse racked up while you were married, but this isn’t necessarily true. Marital property isn’t just about money and items – it includes debts, too.
While equitable distribution can place more or less debt on either spouse, it’s not true that you won’t be responsible for at least part of your spouse’s credit card purchases or excessive gambling debts. That said, if a judge determines that the debts accrued were egregious or were incurred with the intent to harm the other spouse’s financial position, then some debts may be assigned to the spouse who created them.
3. “Infidelity Means One Spouse Will Get More Than the Other”
It’s widely believed that cheating in and of itself has an impact on property division, but this isn’t true. Unless a spouse’s infidelity included expensive purchases for the benefit of his or her affair, it’s unlikely that the cheating will be addressed during property division.
If the cheating spouse did spend a lot of money that would be considered marital property, a judge might take this into consideration by taking a certain value of what was given or spent out of that spouse’s share of the equitable distribution.
That can make it seem like the court is penalizing the spouse for infidelity, but it’s really only trying to account for the marital property that the spouse already used for their personal benefit over the marriage’s.
4. “My Retirement Account Isn’t Marital Property”
Because marital property includes all income, whether from wages or dividends, that occurs during marriage, your retirement account isn’t safe from equitable distribution.
All of the money you funded into your retirement accounts, as well as the value that your account appreciated over time, is subject to property division for the span of time during which you were married. This means that divorce has the potential to upend one’s plans for retirement entirely.
5. “I Created My Business before I Got Married, So It’s Safe”
It’s true that assets you acquired before your wedding are considered separate property and can be protected from equitable distribution. A business is a lot different, though, because it probably generated income and debts throughout the marriage, which could make it a hybrid asset where at least some portion of it is considered for equitable distribution.
It may even be considered a marital asset entirely if you named your spouse as a co-owner or they significantly contributed to the operation or management of the business during your marriage.
Do You Need to Call an Attorney?
At Malinowski Hubbard, PLLC, our attorneys are dedicated to representing clients like you who are dealing with difficult family law matters. If your legal situation involved concerns regarding equitable distribution, rest assured that one of our experienced and skillful advocates can help you protect what you deserve during your divorce.