One of the most trying aspects of divorce is divvying up property, especially if there are valuable assets the spouses have acquired during the marriage. One of the most valuable of these is the family home. Dividing the home between the spouses can be problematic, since it may be that one spouse — typically the one with custody of the children — wishes to remain in possession for some time after the divorce.

Virginia law provides for dividing marital property between divorcing spouses according to the rule of equitable distribution. This does not necessarily mean that the property is split 50/50. The court will decide on a fair division by taking into account a number of factors, such as each spouse’s contributions to the well-being of the family and to the acquisition and maintenance of property.

First, the court must determine if the home is marital property. The home may be separate property and not subject to equitable distribution if any of the following are true:

  • One spouse owned the home prior to the marriage and never changed the title.
  • The other spouse did not contribute significant equity or improvements to the home.
  • One spouse inherited the home, either before or during the marriage.
  • One spouse received the home as a gift, either before or during the marriage

A home that starts out as separate property can become marital property by what is known as transmutation. This can happen, for example, when the non-owner spouse contributes capital to renovation or expansion of the property and/or cosigns and makes payments on home improvement loans. In such cases, the home can be deemed hybrid property: part marital and part separate.

If the home is wholly or partly marital property, there are a number of methods a court can use to resolve division of ownership:

  • Sale of the home — This is the simplest solution, since the parties can divide the proceeds from the sale of the house, following payment of the mortgage and other liabilities.
  • One spouse purchases the home — The spouse that wants to stay in the home can pay the other spouse the cash value of his or her equity interest, with adjustments for taxes and mortgage debt.
  • Exchange of marital property — The spouse that wants to stay in the home receives less of the other assets to offset the additional equity interest received.

Still another possible outcome is for the spouses to agree that one of them will have exclusive possession of the home for a given period of time, such as until the couple’s children reach majority age or graduate from college. Once that occurs, the home can be sold and the sale proceeds divided. Courts generally favor fair divorce settlements that avoid difficulties in dividing assets.

At Harding, Harding & Harding Attorneys at Law, our Virginia family law attorneys assist in all aspects of property division during divorce. We have offices Virginia Beach, Chesapeake and Norfolk. Contact us online or call 757-499-2600 for a consultation.

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