• A spouse can start a divorce action in Virginia by filing a Complaint in the Chancery Side Circuit Court. Spouses are eligible for divorce if the marriage suffered a breakdown and the spouses have been separated for six months (one year if the spouses have minor children). If not, they must have fault grounds like adultery, abandonment or abuse. Before a divorce is finalized, several issues must be settled, including the classification and division of the spouse' property.
  
  

Separate Property

• When preparing a divorce settlement, a judge must first classify the spouses' property, because not all property will be divided. Virginia Code Section 20-107.3(A)(1) defines separate property, which includes any property acquired by one spouse prior to the marriage, any property acquired during the marriage with proceeds from a sale of other separate property and any property received by one spouse as a family gift or inheritance.
  
  

Marital Property

• Any other property is classified as marital property. This means that any property purchased during the marriage and any income earned during the marriage are considered as marital property. Sections 20-107.3(A)(2) and (3) of the Virginia Code set forth other special circumstances in which separate property becomes marital property. For example, if either spouse started earning a pension before the marriage, the other spouse will be entitled to a portion of the value earned during the marriage. Additionally, if separate property was ever commingled with marital property, such as an inheritance check being deposited into a joint bank account, it becomes marital property and will be divided. Lastly, if spouses ever used marital assets to make improvements on separate property, such as a kitchen or bathroom remodel, the increase in value on the property is marital property.
  
  

Settlements

• Once the court determines which property is a marital asset, it is divided between the spouses. Any awards for spousal maintenance (alimony) or child support are separate and cannot be a factor in deciding the property settlement order. The factors the court can consider are set forth in Virginia Code Section 20-107.3(E). They include the length of the marriage, financial contributions to the marriage; nonfinancial contributions to the marriage, including duties as a homemaker and caretaker of the children; the spouses' ages; any mental or physical conditions of either spouse; the value of the marital property; whether the property can be liquidated and/or divided; each spouse's financial needs; and the grounds that led to the end of the marriage, especially if one spouse was at fault and whether either spouse attempted to hide or improperly transfer assets in anticipation of the divorce and property settlement.