2006 Code of Virginia § 20-107.3 - Court may decree as to property of the parties

20-107.3. Court may decree as to property of the parties.

A. Upon decreeing the dissolution of a marriage, and also upon decreeing adivorce from the bond of matrimony, or upon the filing with the court asprovided in subsection J of a certified copy of a final divorce decreeobtained without the Commonwealth, the court, upon request of either party,shall determine the legal title as between the parties, and the ownership andvalue of all property, real or personal, tangible or intangible, of theparties and shall consider which of such property is separate property, whichis marital property, and which is part separate and part marital property inaccordance with subdivision A 3. The court shall determine the value of anysuch property as of the date of the evidentiary hearing on the evaluationissue. Upon motion of either party made no less than 21 days before theevidentiary hearing the court may, for good cause shown, in order to attainthe ends of justice, order that a different valuation date be used. Thecourt, on the motion of either party, may retain jurisdiction in the finaldecree of divorce to adjudicate the remedy provided by this section when thecourt determines that such action is clearly necessary, and all decreesheretofore entered retaining such jurisdiction are validated.

1. Separate property is (i) all property, real and personal, acquired byeither party before the marriage; (ii) all property acquired during themarriage by bequest, devise, descent, survivorship or gift from a sourceother than the other party; (iii) all property acquired during the marriagein exchange for or from the proceeds of sale of separate property, providedthat such property acquired during the marriage is maintained as separateproperty; and (iv) that part of any property classified as separate pursuantto subdivision A 3. Income received from separate property during themarriage is separate property if not attributable to the personal effort ofeither party. The increase in value of separate property during the marriageis separate property, unless marital property or the personal efforts ofeither party have contributed to such increases and then only to the extentof the increases in value attributable to such contributions. The personalefforts of either party must be significant and result in substantialappreciation of the separate property if any increase in value attributablethereto is to be considered marital property.

2. Marital property is (i) all property titled in the names of both parties,whether as joint tenants, tenants by the entirety or otherwise, except asprovided by subdivision A 3, (ii) that part of any property classified asmarital pursuant to subdivision A 3, or (iii) all other property acquired byeach party during the marriage which is not separate property as definedabove. All property including that portion of pensions, profit-sharing ordeferred compensation or retirement plans of whatever nature, acquired byeither spouse during the marriage, and before the last separation of theparties, if at such time or thereafter at least one of the parties intendsthat the separation be permanent, is presumed to be marital property in theabsence of satisfactory evidence that it is separate property. For purposesof this section marital property is presumed to be jointly owned unless thereis a deed, title or other clear indicia that it is not jointly owned.

3. The court shall classify property as part marital property and partseparate property as follows:

a. In the case of income received from separate property during the marriage,such income shall be marital property only to the extent it is attributableto the personal efforts of either party. In the case of the increase in valueof separate property during the marriage, such increase in value shall bemarital property only to the extent that marital property or the personalefforts of either party have contributed to such increases, provided that anysuch personal efforts must be significant and result in substantialappreciation of the separate property.

For purposes of this subdivision, the nonowning spouse shall bear the burdenof proving that (i) contributions of marital property or personal effort weremade and (ii) the separate property increased in value. Once this burden ofproof is met, the owning spouse shall bear the burden of proving that theincrease in value or some portion thereof was not caused by contributions ofmarital property or personal effort.

"Personal effort" of a party shall be deemed to be labor, effort,inventiveness, physical or intellectual skill, creativity, or managerial,promotional or marketing activity applied directly to the separate propertyof either party.

b. In the case of any pension, profit-sharing, or deferred compensation planor retirement benefit, the marital share as defined in subsection G shall bemarital property.

c. In the case of any personal injury or workers' compensation recovery ofeither party, the marital share as defined in subsection H of this sectionshall be marital property.

d. When marital property and separate property are commingled by contributingone category of property to another, resulting in the loss of identity of thecontributed property, the classification of the contributed property shall betransmuted to the category of property receiving the contribution. However,to the extent the contributed property is retraceable by a preponderance ofthe evidence and was not a gift, such contributed property shall retain itsoriginal classification.

e. When marital property and separate property are commingled into newlyacquired property resulting in the loss of identity of the contributingproperties, the commingled property shall be deemed transmuted to maritalproperty. However, to the extent the contributed property is retraceable by apreponderance of the evidence and was not a gift, the contributed propertyshall retain its original classification.

f. When separate property is retitled in the joint names of the parties, theretitled property shall be deemed transmuted to marital property. However, tothe extent the property is retraceable by a preponderance of the evidence andwas not a gift, the retitled property shall retain its originalclassification.

g. When the separate property of one party is commingled into the separateproperty of the other party, or the separate property of each party iscommingled into newly acquired property, to the extent the contributedproperty is retraceable by a preponderance of the evidence and was not agift, each party shall be reimbursed the value of the contributed property inany award made pursuant to this section.

h. Subdivisions A 3 d, e and f of this section shall apply to jointly ownedproperty. No presumption of gift shall arise under this section where (i)separate property is commingled with jointly owned property; (ii) newlyacquired property is conveyed into joint ownership; or (iii) existingproperty is conveyed or retitled into joint ownership. For purposes of thissubdivision A 3, property is jointly owned when it is titled in the name ofboth parties, whether as joint tenants, tenants by the entireties, orotherwise.

B. For the purposes of this section only, both parties shall be deemed tohave rights and interests in the marital property. However, such interestsand rights shall not attach to the legal title of such property and are onlyto be used as a consideration in determining a monetary award, if any, asprovided in this section.

C. Except as provided in subsection G, the court shall have no authority toorder the division or transfer of separate property or marital property whichis not jointly owned. The court may, based upon the factors listed insubsection E, divide or transfer or order the division or transfer, or both,of jointly owned marital property, or any part thereof. The court shall alsohave the authority to apportion and order the payment of the debts of theparties, or either of them, that are incurred prior to the dissolution of themarriage, based upon the factors listed in subsection E.

As a means of dividing or transferring the jointly owned marital property,the court may transfer or order the transfer of real or personal property orany interest therein to one of the parties, permit either party to purchasethe interest of the other and direct the allocation of the proceeds, providedthe party purchasing the interest of the other agrees to assume anyindebtedness secured by the property, or order its sale by private sale bythe parties, through such agent as the court shall direct, or by public saleas the court shall direct without the necessity for partition. All decreesentered prior to July 1, 1991, which are final and not subject to furtherproceedings on appeal as of that date, which divide or transfer or order thedivision or transfer of property directly between the parties are herebyvalidated and deemed self-executing. All orders or decrees which divide ortransfer or order division or transfer of real property between the partiesshall be recorded and indexed in the names of the parties in the appropriategrantor and grantee indexes in the land records in the clerk's office of thecircuit court of the county or city in which the property is located.

D. In addition, based upon (i) the equities and the rights and interests ofeach party in the marital property, and (ii) the factors listed in subsectionE, the court has the power to grant a monetary award, payable either in alump sum or over a period of time in fixed amounts, to either party. Theparty against whom a monetary award is made may satisfy the award, in wholeor in part, by conveyance of property, subject to the approval of the court.An award entered pursuant to this subsection shall constitute a judgmentwithin the meaning of 8.01-426 and shall not be docketed by the clerkunless the decree so directs. The provisions of 8.01-382, relating tointerest on judgments, shall apply unless the court orders otherwise.

Any marital property, which has been considered or ordered transferred ingranting the monetary award under this section, shall not thereafter be thesubject of a suit between the same parties to transfer title or possession ofsuch property.

E. The amount of any division or transfer of jointly owned marital property,and the amount of any monetary award, the apportionment of marital debts, andthe method of payment shall be determined by the court after consideration ofthe following factors:

1. The contributions, monetary and nonmonetary, of each party to thewell-being of the family;

2. The contributions, monetary and nonmonetary, of each party in theacquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of themarriage, specifically including any ground for divorce under the provisionsof subdivisions (1), (3) or (6) of 20-91 or 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts andliabilities, and the property which may serve as security for such debts andliabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for anonmarital separate purpose or the dissipation of such funds, when such wasdone in anticipation of divorce or separation or after the last separation ofthe parties; and

11. Such other factors as the court deems necessary or appropriate toconsider in order to arrive at a fair and equitable monetary award.

F. The court shall determine the amount of any such monetary award withoutregard to maintenance and support awarded for either party or support for theminor children of both parties and shall, after or at the time of suchdetermination and upon motion of either party, consider whether an order forsupport and maintenance of a spouse or children shall be entered or, ifpreviously entered, whether such order shall be modified or vacated.

G. In addition to the monetary award made pursuant to subsection D, and uponconsideration of the factors set forth in subsection E:

1. The court may direct payment of a percentage of the marital share of anypension, profit-sharing or deferred compensation plan or retirement benefits,whether vested or nonvested, which constitutes marital property and whetherpayable in a lump sum or over a period of time. The court may order directpayment of such percentage of the marital share by direct assignment to aparty from the employer trustee, plan administrator or other holder of thebenefits. However, the court shall only direct that payment be made as suchbenefits are payable. No such payment shall exceed 50 percent of the maritalshare of the cash benefits actually received by the party against whom suchaward is made. "Marital share" means that portion of the total interest,the right to which was earned during the marriage and before the lastseparation of the parties, if at such time or thereafter at least one of theparties intended that the separation be permanent.

2. To the extent permitted by federal or other applicable law, the court mayorder a party to designate a spouse or former spouse as irrevocablebeneficiary during the lifetime of the beneficiary of all or a portion of anysurvivor benefit or annuity plan of whatsoever nature, but not to include alife insurance policy. The court, in its discretion, shall determine asbetween the parties, who shall bear the costs of maintaining such plan.

H. In addition to the monetary award made pursuant to subsection D, and uponconsideration of the factors set forth in subsection E, the court may directpayment of a percentage of the marital share of any personal injury orworkers' compensation recovery of either party, whether such recovery ispayable in a lump sum or over a period of time. However, the court shall onlydirect that payment be made as such recovery is payable, whether bysettlement, jury award, court award, or otherwise. "Marital share" meansthat part of the total personal injury or workers' compensation recoveryattributable to lost wages or medical expenses to the extent not covered byhealth insurance accruing during the marriage and before the last separationof the parties, if at such time or thereafter at least one of the partiesintended that the separation be permanent.

I. Nothing in this section shall be construed to prevent the affirmation,ratification and incorporation in a decree of an agreement between theparties pursuant to 20-109 and 20-109.1. Agreements, otherwise valid ascontracts, entered into between spouses prior to the marriage shall berecognized and enforceable.

J. A court of proper jurisdiction under 20-96 may exercise the powersconferred by this section after a court of a foreign jurisdiction has decreeda dissolution of a marriage or a divorce from the bond of matrimony, if (i)one of the parties was domiciled in this Commonwealth when the foreignproceedings were commenced, (ii) the foreign court did not have personaljurisdiction over the party domiciled in the Commonwealth, (iii) theproceeding is initiated within two years of receipt of notice of the foreigndecree by the party domiciled in the Commonwealth, and (iv) the court obtainspersonal jurisdiction over the parties pursuant to subdivision A 9 of 8.01-328.1, or in any other manner permitted by law.

K. The court shall have the continuing authority and jurisdiction to make anyadditional orders necessary to effectuate and enforce any order enteredpursuant to this section, including the authority to:

1. Order a date certain for transfer or division of any jointly ownedproperty under subsection C or payment of any monetary award under subsectionD;

2. Punish as contempt of court any willful failure of a party to comply withthe provisions of any order made by the court under this section;

3. Appoint a special commissioner to transfer any property under subsection Cwhere a party refuses to comply with the order of the court to transfer suchproperty; and

4. Modify any order entered in a case filed on or after July 1, 1982,intended to affect or divide any pension, profit-sharing or deferredcompensation plan or retirement benefits pursuant to the United StatesInternal Revenue Code or other applicable federal laws, only for the purposeof establishing or maintaining the order as a qualified domestic relationsorder or to revise or conform its terms so as to effectuate the expressedintent of the order.

(1982, c. 309; 1984, c. 649; 1985, cc. 4, 442; 1986, cc. 533, 537; 1988, cc.745, 746, 747, 825, 880; 1989, c. 70; 1990, cc. 636, 764; 1991, cc. 632, 640,698; 1992, c. 88; 1993, c. 79; 2004, cc. 654, 757; 2006, c. 260.)