In a divorce proceeding, the determination of who gets what property is, in part, dictated by how the property is classified. Virginia law makes a distinction between separate property and marital property.
Generally speaking, all real and personal property acquired by either party prior to marriage is presumed to be separate property, and thus not subject to division between the parties. For example, if a party had $30,000.00 in a separate bank account on the date of marriage, and that $30,000.00 remained in that separate account throughout the marriage, that party would be entitled to receive the $30,000.00 in its entirety upon divorce.
However, this rule is not without its exceptions. Separate property can lose its separate quality if it is commingled with marital property, such that it becomes transmuted (is considered to have transformed) to marital property. If separate property is found to have been commingled to such an extent as it becomes transformed, it is deemed marital and subject to division by the parties.
BUT, there is still a way to try to get that separate property back. If the separate property can be traced out such that its separate quality can be demonstrated, the property may retain its separate quality. Providing proof of the tracing is important and the burdne is high; documents that detail transactions are a crucial part to seek having separate property “backed out.”
In addition to an experienced attorney helping with a tracing issue, it may be necessary to have the help of a forensic account as well.
— By Kari Jackson, Associate at Hall & Hall