- 1 To put it quite simply…
- 1.1 What are the laws/rules when it comes to marital property in the state of Virginia?
- 1.2 Difference between Community Property law and some other types of Non -Community Property Laws when it comes to marital property in the United States?
- 1.2.1 Community property states and common law states:
- 1.2.2 Some exceptions…
- 1.2.3 What are some of the rights that immigrants have if the immigrant has a divorce in the United States?
- 1.2.4 The Vocabulary of Court
- 1.2.5 Seeking Legal Advice…
- 1.3 So Is Virginia a community property state?
- 2 Frequently Asked Questions (FAQ’s):
To put it quite simply…
Virginia is not a ‘community property’ state, it is considered as an ‘equitable distribution state’. The term ‘community property’ under the marital property law states that all the assets, properties and, debts earned during the marriage will be equally split between the couple after their separation.
So the answer to the question “is VA a community property state” is ‘No’. To give Virginia equitable distribution statute, the judicial body has come up with various rules of the property distribution laws in Virginia that we will discuss in the next sections of this article.
What are the laws/rules when it comes to marital property in the state of Virginia?
Marital property or the properties that both the husband and the wife acquire after their marriage have different outcomes, some specific laws state that the residents of Virginia need to adhere to. ‘Virginia Equitable Property Statute’ states that properties that are acquired after marriage should be divided by the court. There is often confusion regarding this scenario, and questions like “Is Virginia Community Property state?” but that is why this article is here, to help you clear out these confusions. It must be done fairly between the partners and it must depend on their financial situation. It also depends on how much they use, maintain, or take care of the property.
During their divorce process, the couple is given time to discuss and come to a mutual agreement on how the property should be divided after which the court puts will make its final decision with the trial.
The term ‘equitable distribution of the property’ refers to a form of property division where the property divided between the spouses may or may not be an even 50/50 split. More of the properties you own may be taken into consideration during the distribution process as opposed to the distribution of your assets using the ‘community property’ law.
It should be kept in mind that the court only divides the marital estate that is the marital property, and the marital debts after the couples are divorced; separate property or debts are not divided between the two. With this context in mind, any property which is shared between both the individuals during their marriage or is used as a benefit in the marriage is also considered marital property.
In the case of some properties for example, if the husband or the wife owns a business before marriage and after their marriage, their business flourished owing to the contribution of both the spouses, then, in that case, it can be considered marital property and will be divided accordingly.
When it comes to marital debts, all the liabilities that are jointly acquired by the couple like joint credit cards or joint loans will be divided between both spouses on an equitable basis.
Various factors are taken into consideration when the court divides the marital properties in Virginia after evaluating them:
- How much each spouse is earning and how much liability they have; or in other words, their earning capability is one of the major factors to be taken into account with regards to property division.
- Their contribution and maintenance towards the marital property: How much each spouse is contributed towards the maintenance and up-gradation of the property.
- The length of the marriage between the couple or how long did the marriage last.
- The mental and physical health of each spouse.
- The behavior of both the spouses towards each other during their marriage will also play a vital role in this process.
- The age of the spouse and whether they are eligible enough to maintain and handle that property.
- The various benefits that the spouses may get after their retirements like pension plans and other benefits.
- If the spouses can support themselves individually on financial grounds.
- The various taxes applied to the marital property and how each of them will deal with it.
- Apart from these, there may be several other factors that the court may take into consideration before the property is divided between the two.
What are some other community property states in the United States?
When it comes to the community property system’ in the United States, not many countries have adopted this system; instead, they follow the ‘equitable distribution of properties’. The various states that follow community property systems are California, Nevada, Idaho, Arizona, Louisiana, Texas, New Mexico, Washington, and Wisconsin. Apart from these states, people from Alaska have the option to choose between a community property system or equitable distribution standards.
Difference between Community Property law and some other types of Non -Community Property Laws when it comes to marital property in the United States?
Marital property distribution involves two different kinds of laws in the United States. While few states have chosen to adopt the ‘community property law’, most of the other states follow the equitable distribution of the properties’.
While, in the case of community property, the properties that the couples have acquired during the marriage are split into equal parts between the two spouses after their divorce; in the case of equitable property distribution, all the properties acquired during the marriage are evaluated by the court and the court attempts to distribute these properties in as equitable a manner as possible considering various factors. In the case of equitable property distribution, more properties are taken into consideration as marital property but are not split on a 50/50 basis.
Community property states and common law states:
The ‘common law’ comes into the picture in scenarios where the community property standards don’t apply. The common law is followed by most of the states that do not follow community property law. As per the law, if an individual has acquired the property after marriage and the property is registered in his or her name, then the property will belong to that person alone. The common law is implemented by the state to make the marital property division fair and just even when the community property standards are followed.
However, there are few exceptions to the community property laws which may be applicable in the following situations:
- If the spouse has received the property in the form of a gift.
- In case the spouse has inherited the property from his or her family during the marriage.
- If one of the spouses has acquired the property before marriage.
- The spouse has acquired the property during their divorce after they have legally separated and are not living together.
- If the individual has got the property through a trust fund or a will.
Now that we have a daily good idea about the different types of marital property laws involved in the country and what each type entails, let’s understand how an immigrant can cope up with the divorce process and what rights he or she has in the country.
What are some of the rights that immigrants have if the immigrant has a divorce in the United States?
The entire process of divorce seems more complicated and panic-inducing when it comes to an immigrant going through a separation in marriage. With the lack of knowledge about the country’s domestic laws pertaining to divorce procedures and about the rights that the immigrant is entitled to, it can be even more confusing.
This section of the article will provide you with information about some of the rights that an immigrant spouse has in divorce which not only applies to the state of Virginia but also throughout the United States.
Here is a list of the rights that you are entitled to as an immigrant spouse :
Right to your children: As a parent of your child, you will have an equal right to put forward your opinion in front of the court or the judge about the custody, welfare, or wellbeing of your child. There is no preference given to the father or the mother of the child by the court.
You can decide what is in the best interest of your child. However, this doesn’t mean that the court will decide in your favor. The judge will decide what is best and safe for your child’s future depends on your ability to look after your child, the opinion you have put forward, your mental and physical health conditions, your home environment, and more.
Several deciding factors determine who will have custody of the child:
- The age, the physical, and the mental health condition of the child will determine who the child will need the most.
- The relationship between the child and the parent plays a vital role in deciding who the child will live with.
- The physical and the mental condition of each parent as well as their age.
- The financial background of the parents and how they will be able to contribute to the child’s development.
- Your family background and how it will affect the child in the future, whether there is a history of sexual, physical, or verbal abuse in the family of which the child may fall a victim.
- If your child has reached a certain age where he or she can put in the preference as to who she or she wants to live with.
- Other relationships that the child has in the family are also considered important like the child’s relationship and bonding with the siblings or grandparents.
The Vocabulary of Court
There are few ‘custody vocabulary’ or legal terms that you need to know and understand. When it comes to determining the custody of your child it is important to understand these terms. Here are some examples:
- Primary physical custody
- Legal and physical custody
- Split physical custody
Please click on this link to know more about these legal terminologies that may be of help when you are dealing with a custody case.
One of the key points to remember here is when you are applying for your child’s passport, both the parents must be involved in the US passport application and flag the records under the CPIAP Children’s Passport Issuance Alert Program. This is done to avoid the child being shipped out of the country in case of a marital dispute or for any other security reasons.
- Right to the share of the marital assets and alimony: You have the right to receive alimony from your spouse and an equitable or an equal share in the properties and the assets of your partner depending on which state you live in. It can be the house, car, bonds, or any other form of assets that you have acquired after marriage. The court will come to a fair decision after evaluating the properties and listening to both your opinions that both of you have mutually agreed upon.
- Your right to file a divorce: If you have decided that you cannot continue the relationship further (for any valid reason), you can file for a divorce and your spouse cannot stop you from that or force you to be in the marriage. You also should know that your spouse cannot ship you out of the country without your will.
- When it comes to deportation laws, it can be a bit complex in the United States owing to the strict laws of the country. As an immigrant, if you are worried about whether you will be deported out of the US after your divorce, you can approach an immigration attorney for the best advice and go through the paperwork with other immigration rules and procedures.
Seeking Legal Advice…
As an immigrant, you also may have to seek advice from legal representatives in your home country as a marriage dissolution case can be fairly complicated for foreign nationals. This is done to make sure that the process of divorce or the child custody due to the marriage dissolution is recognized and valid in the United States. It is also that you can be prepared with the required documentation and other evidence that may help you through the process.
With all the information that we have shared in the above article, and going through the various aspects related to the property laws, it can be concluded that Virginia’s marital property law (equitable distribution of properties) is pretty much straightforward and fair.
So Is Virginia a community property state?
On the other hand, when it comes to the community property law, most assets are considered marital assets and are split into equal halves. As simple as this may sound there are other implications to this rule which may not be quite fair. While the community property law can majorly affect one person’s financial situation, it can be significantly beneficial for the other one.
Apart from the few states in the United States, some other countries that follow community property law are Belgium, Brazil, Mexico, France, Colombia, Philippines, Netherlands, Sweden, and Spain to name a few. We hope this article has answered some of your questions, especially the question ” Is Virginia a Community Property state?”
Frequently Asked Questions (FAQ’s):
Virginia follows the ‘equitable distribution’ of property in which the marital properties are divided by the court on an equitable basis after running through a proper evaluation of the property. The court tries to divide the property in as much a fair manner as possible.
If your spouse has contributed towards your education or has provided financial aid towards your education that helped you achieve your educational qualification and you are reaping monetary benefits out of it, for example, you have got a job based on your degree, then the court will consider that when evaluating the marital assets and the division will take place according to that.
Yes, prenuptial agreements will impact the division of the marital assets. If you have signed a contract before marriage that specifies how the property will be divided between the two, which ones are marital property and which ones are separate, then that would become an exception and will not be considered during the division of the property.
In a marital case, unless proven otherwise, either side of the couple can claim partial ownership of a piece of property, provided they can share details of their contributions or purchase to the court and the judge. Such a piece of property is said to be a hybrid property.