Virginia's 11 Equitable Distribution Factors: Code § 20-107.3

Virginia divides marital property equitably, not equally. The distinction is the source of more false expectations than any other rule in Virginia divorce law, and it is worth being precise about: the statute never mentions equality as a starting point.

Before the court reaches the eleven factors, it does something else first.

Step one: classification

Under § 20-107.3(A) the court classifies every asset and debt as separate, marital, or part-separate and part-marital — hybrid property. Only the marital share gets divided.

• Separate — owned before the marriage, or acquired during it by gift from a third party or inheritance, plus anything traceable to those sources
• Marital — acquired during the marriage from any other source, including income earned during the marriage regardless of whose name is on the account
• Hybrid — the common real-world case. A house bought before the marriage but paid down with marital earnings, or a retirement account with both pre- and post-marital contributions

Two traps matter here. Separate property that gets commingled into joint accounts or retitled into joint names is presumed to have become marital unless you can trace it back by a preponderance of the evidence — and tracing means records, not recollection. And classification is a factual determination reviewed deferentially on appeal, so it is very difficult to fix later.

One asymmetry in the statute deserves attention: marital property is generally valued as of the date of the evidentiary hearing, while marital debt is measured as of the date of the last separation.

Step two: the eleven factors under § 20-107.3(E)

1. Contributions, monetary and nonmonetary, of each party to the well-being of the family. Homemaking and child-rearing count. This is explicit in the statute and it is the reason a spouse who earned nothing can receive a substantial share.

2. Contributions, monetary and nonmonetary, in the acquisition, care, and maintenance of the marital property. Renovating the house yourself counts here.

3. The duration of the marriage.

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

5. The circumstances and factors that contributed to the dissolution of the marriage, specifically including any ground for divorce under § 20-91(1), (3), or (6) or § 20-95. This is where fault enters property division. Adultery, cruelty, and desertion can influence the split — though in practice courts weigh economic misconduct more heavily than personal misconduct alone.

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

7. The debts and liabilities of each spouse, the basis for them, and the property that may serve as security.

8. The liquid or nonliquid character of all marital property. A judge is aware that awarding one spouse the house and the other the retirement account is not the same as awarding cash to both.

9. The tax consequences to each party.

10. The use or expenditure of marital property for a nonmarital separate purpose, or the dissipation of marital funds, in anticipation of divorce or separation. Dissipation is the factor that moves numbers most. Money spent on a paramour, gambled away, or moved out of reach once the marriage was failing can be charged back against the spending spouse’s share.

11. Such other factors as the court deems necessary or appropriate.

What the court can order

The court can transfer ownership of jointly owned property, order an asset sold and the proceeds divided, or issue a monetary award where a fair result cannot be reached by transferring assets. For retirement benefits, the court may order direct payment of no more than fifty percent of the marital share of the benefits actually received.