What are the instances when a home in Virginia is not a marital asset?

1.  I bought my home 1 year prior to my marriage and used my own funds
for the mortgage.
2.  The mortgage has always been in my name, even after marriage, and
I have used only my funds to pay for the mortgage
3.  Three and a half years later we are going through a divorce.  She,
and her lawyer, believe the home is community property and that she is
entitled to exactly half of the value of the home.  The home has
appreciated over $200K.
4.  My wife does not work and does not contribute funds towards the
mortgage payment.  She has in no way helped increase the value of the
home via building a deck, putting in a pool, etc.
5.  My lawyer and I content the house is my SOLE and SEPERATE property. 
Is it?  Is there Virginia Case Law that defines the definition of
separate property if that property was purchased before marriage?
6.  We are working on our separation agreement and as you can imagine
the biggest sticking point is this house.  Although my lawyer thinks
the house is all mine, I would like to see if there is any legal
precedent to back up our arguement before I spend alot of time,
stress, and money in defending this position tooth and nail.

I know that my lawyer should be getting this info for me, and they
are, but my goal with this question is to either feel 99% positive
that I would win the house if I had to go before a judge, or know 99%
that I will not win the house and cut my losses and give in on the
house now to draw up the separation agreement faster, easier, and
without the headache of a trial.

Dear virginiaseparation-ga;

Thank you for allowing me an opportunity to answer your interesting
question. You will note our disclaimer at the bottom of this page that
by policy we cannot provide legal advice in this forum. What I am
about to point out to you is a matter of published law and precedent
that is available for public consumption. Usually I also point out the
wisdom of retaining an attorney for advice on legal matters, but since
you are already ahead of the game here I shall proceed without further
ado:

The law in Virginia on this matter is rather unique. It is sort of a
hybrid in terms of how it handles ?equitable distribution? issues.
While the state is indeed focused on protecting parties' interests of
jointly owned, partly owned, or separately owned property, it is the
court that ultimately rules on how these properties are characterized.
In other words, the characterization of property in Virginia is not
automatically assumed (as it is in some truly ?equitable distribution?
states); rather if one party asks the court to intervene and define
property for distribution purposes, it will.

?Under Virginia's system of ?equitable distribution,? the court is not
required to divide the marital property on an equal basis. Instead,
the court will consider various factors listed in the Virginia
equitable distribution statute, including the relative monetary and
non-monetary contributions of each of the parties to the well being of
the family and to the acquisition and care of the marital property,
when determining how to divide the marital assets.?
VIRGINIA STATE BAR ASSOCIATION
?Divorce in Virginia?
http://www.vsb.org/publications/brochure/divorce.html

In Virginia, there are three fundamental forms of marital property:

- Property acquired by either party during the marriage that is not
separate property

- Property that is part marital and part separate. 

- Property whose title is held by both parties (however, this still
may be proven to be separate or partly separate if it can be traced
accurately and fairly to separate property).

Likewise, separate property has three basic forms:

-  All real and personal property acquired by either party before the marriage 

- All property acquired during the marriage by inheritance or gift
from a source other than the other party

- All property acquired during the marriage in exchange for or from
the proceeds of the sale of separate property, provided it is
maintained separately

CROUCH & CROUCH LAW FIRM, ARLINGTON, VIRGINIA
?DIVISION OF MARITAL PROPERTY IN VIRGINIA?
http://patriot.net/~crouch/familylaw/property.htm

What does ?tracing property? mean? Well it?s just what it sounds like;
the ability to accurately trace and determine the origin of the
property and contribution of each party thereby establishing full,
part or equally joint ownership:

CROUCH & CROUCH LAW FIRM, ARLINGTON, VIRGINIA
?WHAT EXACTLY DOES "TRACING" OF SEPARATE ASSETS MEAN??
http://patriot.net/~crouch/flnc/tra.html
(This article also includes some very interesting, pertinent case law
and legal precedents)

Virginia Code § 20-107.3 ***CLEARLY*** defines what marital property
is and what separate property is. For the purpose of emphasis I have
capitalized what I think is most relative in helping you support your
argument from a statutory standpoint:

?SEPARATE PROPERTY IS (I) ALL PROPERTY, REAL AND PERSONAL, ACQUIRED BY
EITHER PARTY BEFORE THE MARRIAGE; (ii) all property acquired during
the marriage by bequest, devise, descent, survivorship or gift from a
source other than the other party; (iii) all property acquired during
the marriage in exchange for or from the proceeds of sale of separate
property, provided that such property acquired during the marriage is
maintained as separate property; and (iv) that part of any property
classified as separate pursuant to subdivision A 3. Income received
from separate property during the marriage is separate property if not
attributable to the personal effort of either party. THE INCREASE IN
VALUE OF SEPARATE PROPERTY DURING THE MARRIAGE IS SEPARATE PROPERTY,
UNLESS MARITAL PROPERTY OR THE PERSONAL EFFORTS OF EITHER PARTY HAVE
CONTRIBUTED TO SUCH INCREASES AND THEN ONLY TO THE EXTENT OF THE
INCREASES IN VALUE ATTRIBUTABLE TO SUCH CONTRIBUTIONS. THE PERSONAL
EFFORTS OF EITHER PARTY MUST BE SIGNIFICANT AND RESULT IN SUBSTANTIAL
APPRECIATION OF THE SEPARATE PROPERTY IF ANY INCREASE IN VALUE
ATTRIBUTABLE THERETO IS TO BE CONSIDERED MARITAL PROPERTY.?

?MARITAL PROPERTY IS (I) ALL PROPERTY TITLED IN THE NAMES OF BOTH
PARTIES, WHETHER AS JOINT TENANTS, TENANTS BY THE ENTIRETY OR
OTHERWISE, except as provided by subdivision A 3, (ii) that part of
any property classified as marital pursuant to subdivision A 3, or
(iii) all other property acquired by each party during the marriage
which is not separate property as defined above. All property
including that portion of pensions, profit-sharing or deferred
compensation or retirement plans of whatever nature, acquired by
either spouse during the marriage, and before the last separation of
the parties, if at such time or thereafter at least one of the parties
intends that the separation be permanent, is presumed to be marital
property in the absence of satisfactory evidence that it is separate
property. FOR PURPOSES OF THIS SECTION MARITAL PROPERTY IS PRESUMED TO
BE JOINTLY OWNED UNLESS THERE IS A DEED, TITLE OR OTHER CLEAR INDICIA
THAT IT IS NOT JOINTLY OWNED.?

CODE OF VIRGINA
§ 20-107.3. COURT MAY DECREE AS TO PROPERTY OF THE PARTIES.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-107.3


You may be interested in RAHBARAN v. RAHBARAN, where the Virginia
Court of Appeals held that even commingled (hybrid, or jointly owned
property by virtue of contribution), which is considered marital once
it is commingled, is ?retraceable is by a preponderance of the
evidence? and can be proven separate for division purposes. ?In order
to trace the separate portion of hybrid property, a party must prove
that the claimed separate portion is identifiably derived from a
separate asset. This process involves two steps: (1) establishing the
identity of a portion of hybrid property, and (2) directly tracing
that portion to a separate asset.?
DIVORCESOURCE
http://www.divorcesource.com/research/edj/transmutation/98feb20.shtml

(You can subscribe to the DIVORCESOURCE CASELAW DATABASE and find many
other similar cases:
http://www.divorcesource.com/research/edj/cases/categories.shtml )

In BARKER v BARKER the state was able to trace certain assets and
found that it could easily be established what property was marital,
what was separate and what was hybrid-owned.

BARKER v BARKER
http://www.courts.state.va.us/txtops/0812972.txt

It is important to note that almost every case I found where the owner
of premarital property lost his case in court was due to commingling
and/or transmutation of the property - both of which you say you have
intentionally refrained from doing.

While we obviously cannot make the judgment call for you (no pun
intended) as to whether or not you are ?99% sure? (one way or the
other) I can point out what I believe (in my unlicensed opinion, based
on my research) appears to be very compelling support for your
argument when weighed against state statutes and case law. As I
mentioned in my opening statement, we are not attorneys here and we
cannot provide legal advice, however, according to my research, which
includes case law and statutes published for public consumption, it
does appear that the following issues, as you have described them, are
decidedly in your favor:

- You have kept your premarital property separate and the house is not
a commingled asset

- You acquired the property separately from your spouse before the marriage

- Your acquired the property on your own with private funds 

- Your spouse has not contributed to the property in any way

- Your marriage lasted only three years

- You had no intent to transmute or gift the premarital property to
your spouse and your spouse is not a co-owner

You didn?t ask for personal opinion, but here?s mine: based on what I
now know, if I were in your shoes and this situation was the same, I
would trust my attorney?s advice in this instance and fight the matter
out in court if it came down to that. Without knowing what ?the wife?
has up her sleeve, the research seems to indicate that you probably
hold the majority of aces here. (But again, this is just my opinion of
what ?I? would do in this situation, and is not intended as legal
advice). If you don?t trust your attorney?s advice, maybe you should
retain a second independent attorney to counsel you (get a second
opinion) and perhaps even arrange for him or her to share
representation and the two of them can collaborate on your case.

I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise, I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


OTHER INFORMATION SOURCES

DIVORCENET
Division of Marital Property in Virginia
http://www.divorcenet.com/states/virginia/division_of_marital_property_in_virginia

DIVORCESOURCE
http://www.divorcesource.com/research/edj/cases/transmutation.shtml




SEARCH STRATEGY


SEARCH ENGINES USED:

Google ://www.google.com




SEARCH TERMS USED:

VIRGINIA

DIVORCE

PROPERTY

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CASE LAW

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CODE

TRANSMUTATION

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Request for Answer Clarification by virginiaseparation-ga on 30 Apr 2006 20:48 PDT

tutuzdad,

Thanks for the quick answer and indepth analysis, to include your
personal insights.

I have three items for clarifications:
---
It is important to note that almost every case I found where the owner
of premarital property lost his case in court was due to commingling
and/or transmutation of the property.
---

1.  From the above statement, could you give some examples of how
separate property was commingled and/ or transmutated?  I would like
to see what they did to make a separate property be seen as a marital
asset.
2.  Do you have any examples of separate property cases like mine that were won?
3.  The below statement:
---
the characterization of property in Virginia is not
automatically assumed (as it is in some truly ?equitable distribution?
states); rather if one party asks the court to intervene and define
property for distribution purposes, it will.
---

is what concerns me a great deal, because I know the courts in
Virginia do this.  This separate property issue is a huge deal to my
wife and I know that she and her lawyer will not be convinced and will
indeed ask a court to define the property as a maritial asset.  To
that end can you find any statistics on how often or what percentage
of times a court in Virginia rules that a separate property is in fact
a marital asset.  Would help me to understand how far to fight on
this.

Again, thanks for the quick help and good answers,
virginiaseparation

---

Clarification of Answer by tutuzdad-ga on 01 May 2006 12:30 PDT

Hello again virginiaseparation-ga:

"1.  From the above statement, could you give some examples of how
separate property was commingled and/ or transmutated?  I would like
to see what they did to make a separate property be seen as a marital
asset."

You can see a number of cases using the link I provided you from DIVORCESOURCE
http://www.divorcesource.com/research/edj/cases/transmutation.shtml

"2.  Do you have any examples of separate property cases like mine that were won?"

I found no cases simmilar to yours (i.e situations where the
premarital home was clearly the exclusive property of one spouse an
not the other.) I did not find this concerning though as clearly such
evidence of separate property is obviously rarely contested. It can be
assumed that such evidence speaks for itself and does not often
produce a precedent setting case worthy of citation.


"3.  The below statement:
---
the characterization of property in Virginia is not
automatically assumed (as it is in some truly ?equitable distribution?
states); rather if one party asks the court to intervene and define
property for distribution purposes, it will.
---

is what concerns me a great deal..."

Unfortunatley, one often cannot predict a trial's outcome to a degree
of certainty. A person can only present the facts and point out the
factual issues which more strongly support the rights of one in
defense of the claims of another. This is what I have done in my
research. I tend to believe your attorney is instructing you correctly
as the matter is defined by law, however, nothing is certain and "hat
tricks" do happen. I wish I could assure you that your case is
impervious to challenge, but I'd be less than honest if I did so. I do
believe (in my unlicensed opinion) that my research reflects that your
case is built on solid ground and, as your situation is concerned,
this is the best answer you can hope for under the circumstances.

Regards;
tutuzdad-ga

tutuzdad did a great job in a very quick manner and pointed me to some
resources that I had not known about.  I realize that this is not
legal advice but any additional information on a subject like this is
helpful both to me and possibly my lawyer.  Very professional and I
really appreciate the personal advice given.  I would recommend this
researcher to any and all.

Your tip is quite generous! I thank you and I look forward to working
with you again next time.

Regards;
tutuzdad-ga

If the value of the home has appreciated $200K during the marriage,
she might be able to make a decent arguement for half the appreciated
value, so plan accordingly.

Wrong. Read the answer again:

Virginia Code § 20-107.3 
"...THE INCREASE IN VALUE OF SEPARATE PROPERTY DURING THE MARRIAGE IS
SEPARATE PROPERTY, UNLESS MARITAL PROPERTY OR THE PERSONAL EFFORTS OF
EITHER PARTY HAVE
CONTRIBUTED TO SUCH INCREASES AND THEN ONLY TO THE EXTENT OF THE
INCREASES IN VALUE ATTRIBUTABLE TO SUCH CONTRIBUTIONS."

A place you can easily find recent case law for free is
http://www.lexisone.com . If you run a search for Virginia case law
using the search phrase - "marital home" /s 20-107.3 - you will get a
list of recent cases which use the term "marital home" in reasonable
proximity to the separate property statute. (The "/s" stands for "in
the same sentence". You can also use "/p" meaning "in the same
paragraph", or "/[number]", e.g., "/7", where the number references
the maximum number of words between search terms.)

Thatt particular search presently brings up 16 cases. You will likely
find the third case produced, Wiese v Weise, 46 Va. App. 399; 617
S.E.2d 427 (2005) to be instructive as to your situation. (I didn't
browse past that point - you may find other helpful cases as well with
that search or with similar searches you compose.)