Marital & Separate Property in Virginia and Tips if You Are Planning on Leaving the Marital Residence

At time of the final hearing in divorce cases the Judge has the statutory duty to classify all property as marital( broadly meaning acquired during the marriage using marital funds) or separate property ( broadly meaning acquired before the marriage, after separation, or by inheritance or gift from a third party) or in some instances property maybe classified as a hybrid meaning part marital and part separate.

Some tips in anticipation of leaving the marital residence:

If you are the spouse leaving the marital residence the following suggested actions will assist you in being able to prove the presence of property at the time of separation and ensuring that credible evidence is available to enable to classification, value and division.

  1. Take photos of all property in every room and area where property is located.  Attempting to inventory from memory after departure and possible exclusion from the abode by a protective order or other order is inefficient.  The photos will be admissible to substantiate the presence of the item at the time of departure for classification and valuing purposes.
  2. Items that are of sentimental value or are of high value should be taken with you when you leave.  Just being able to establish was there when you departed will not make up for losing an item which cannot be replaced.
  3. Have a witness who will be available at trial walk through the residence with you to substantiate its condition and to establish the presence of items that are being left behind.
  4. Take all of your clothing with you when you leave.  Once you leave there is no guarantee that you will continue to have access to the residence.  Asking your spouse to give you items after you leave with the possibility of "after departure hostility" is not a good position to be in.
  5. Do not rely on your spouse assisting you in the after-departure acquisition of property from the previous marital residence.

To be on the safe side you should, as the departing spouse, count on no cooperation, sympathy or other humanitarian assistance from your spouse.  Keep this in mind as you contemplate how how diligent to be in preserving the record of property for presentation to the court.  Everything in the house has some value and the departing spouse will often be able to ask for a monetary award for property awarded to the other spouse or for property which cannot be divided.


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