Divorce Information

Equitable Distribution: Who Gets The House?

You've decided to get a divorce... Now it's time to begin sorting out the fine details. Dealing with the emotional impact is one thing. Navigating the legal and financial process is something else entirely. One of the biggest parts of a divorce is what Virginia Courts refer to as "Equitable Distribution" which deals with the fair division of marital debts and assets. To put it in terms that might be more important to you, "Who gets the house?" While Equitable Distribution can deal with all sorts of marital assets and debts, it is usually the marital home that is the center of the discussion and divorce debates. As such a large investment (often with significant emotional attachment) it is a great way to learn and understand how a Court deals with marital property. So, what does Virginia state law have to say about it? What are your options? How does the court decide?

Marital Property vs. Separate Property

The first thing to determine is quite simple, and this will go for most of the assets you need to divide. Is the house marital property or separate property? The court will determine the status of the property as "marital" or "separate" - whether the home is jointly owned, or the sole property of one spouse. In the case of separate property, the solution is quite simple. The person who owns the house gets it. This is most common when the home was owned before the marriage, is in one person's name on all documentation, and so on. In the case of marital property, however, there are far more details to work through.

Equitable Distribution

The State of Virginia operates under a system of "equitable distribution" - meaning that the goal is to divide assets as fairly as possible. For marital property (the more common category for homes), that involves quite a bit of scrutiny to decide what's "equitable" or fair. Assuming your house is marital property (you both purchased it while you were married or combined income pays for it, etc.), the courts have to assess many things:

● The market value of the home

● The income of both people

● Contributions to the home

● Housing as it relates to child custody

● The condition of the home

● Date of separation

● Outstanding debts

● When the property was purchased...

And these are just some of the examples! A judge will have to take these factors (and more) into careful consideration. They rule based on an overall assessment. Since there are so many pieces of this puzzle, it's difficult to determine who will get the house at the outset of the case. The value of the home will also be weighed against the value of other assets. An equitable distribution applies to all property/assets to be divided meaning, if you are taking that asset, you likely will have to reimburse your spouse for any equity in the home.

Separation Agreement

If you are in the early stages of your divorce, you may want to consider a separation agreement before going to court. This approach is particularly effective if the split is amicable and you're both willing to compromise. With the help of an attorney, you can draft a separation agreement that details the way you'd like to separate your assets - including the house. This is the easiest way to answer the pressing question of "who get the house" - as long as you can come to a consensus.

Personal Factors

Property is only part of the story. When seeking an equitable distribution, the judge takes personal factors into consideration as well. These may include:

● Employability

● Marital misconduct

● Contributions made during the marriage

● Medical needs

● Childcare contributions

● Mental health

These are but a few of the factors the judge considers - and every situation is unique. The point is that dividing assets, especially a house (typically a couple's largest asset), is no simple task. There's no clear answer for who will get the house - unless you've decided in a separation agreement. This process will cover a ton of ground. If you're battling for ownership of the house, it requires a great deal of evaluation on the judge's part. You and your attorney will provide information related to finance, occupation, and personal factors. All of it is incorporated into the decision.