Marital, Separate and Hybrid Property in Virginia

By the FigureMyTax Editorial Team · How we calculate

In Virginia, property acquired during the marriage is presumed marital and premarital, gifted and inherited property is separate, but growth from significant personal effort or marital contributions, commingling and joint retitling can make separate property hybrid or marital.

Separate property

Separate property is all property acquired before the marriage; all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; property acquired during the marriage in exchange for or from the sale of separate property, if maintained as separate; and the separate part of hybrid property. Income from separate property is separate if not attributable to either party’s personal effort (Va. Code 20-107.3(A)(1)).

Appreciation and personal effort

An increase in the value of separate property is separate unless marital property or personal efforts contributed, and only to the extent of the increase attributable to those contributions. The personal efforts must be significant and result in substantial appreciation. The nonowning spouse must prove that contributions were made and that the property increased in value; the owner then must prove that the increase was not caused by them.

Marital property

Marital property is all property titled in both names, whether as joint tenants, tenants by the entirety or otherwise, and all other property acquired by each party during the marriage that is not separate. Everything acquired during the marriage and before the last separation, including the marital part of pensions, profit-sharing and retirement plans, is presumed marital unless satisfactory evidence shows it is separate, and marital property is presumed jointly owned unless a deed or title shows otherwise.

Commingling and retitling

When marital and separate property are commingled and lose their identity, the contribution takes the classification of the property receiving it; commingling into newly acquired property makes it marital; and retitling separate property in joint names makes it marital. In each case, to the extent the contribution can be traced by a preponderance of the evidence and was not a gift, it keeps its original classification. No presumption of gift arises from commingling with, or conveying into, jointly owned property.

Debts

Marital debt is debt incurred in joint names before the last separation and debt incurred in either name after the marriage and before the last separation; separate debt is premarital debt and debt after the last separation, but a party can show the debt was for the family or for a nonmarital purpose.

Keeping the right paperwork

Keep dated records that trace premarital and inherited property to its source and avoid retitling or commingling it.

Personal injury recoveries

The marital share of a personal injury or workers’ compensation recovery is the part attributable to lost wages or medical expenses, not covered by insurance, accruing during the marriage and before the last separation.

Frequently asked questions

Official sources

• Va. Code 20-107.3: court may decree as to property and debts of the parties
• Va. Code 20-107.1(E)(8): marital property provisions as a spousal support factor

This is general information, not legal advice. It is based on the cited Virginia statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Virginia attorney.