What is a Property Settlement Agreement (PSA) in a Virginia Divorce?

December 9, 2014

marital-settlement-agreementTerms of a Property Settlement Agreement (PSA)

A Property Settlement Agreement (PSA) is a contract between a married couple that sets out the terms of how they will move forward in their lives, during separation and divorce, in the following areas:

  • Parenting Arrangements (also known as Custody & Visitation) – Sets forth the schedule of custodial care. This section also sets forth how child-related responsibilities will be shared. This includes both the decision-making and day-to-day care for the children.
  • Child Support – Sets forth the presumed statutory guideline monthly award (dollar amount) and the actual amount to be paid (which may differ, somewhat, from the presumed guideline amount). This section also clarifies how certain child-related expenses, over and above the monthly child support award, will be covered, e.g. out-of-pocket medical expenses, extracurricular activities, work-related childcare (daycare, nanny, babysitter), camps, tutoring and private school. Some parties also choose to set forth how college tuition and related expenses will be shared between the parties once the child support obligation ends (usually at high school graduation or 18 years of age, whichever comes later).
  • Spousal Support (aka Alimony) – Sets forth the dollar amount of spousal support to be paid (if any) and the duration for which it must be paid. This section also sets forth whether or not spousal support will be modifiable or non modifiable and, in some instances, the specifics of that modifiability. This section also sets forth, where necessary, waivers of the right to petition a court for spousal support at the time of divorce and/or in the future. The Spousal Support section of a PSA must include certain statutory language in order to be acceptable to the IRS. Because the payment of spousal support includes many important tax implications, depending on how the PSA is written, close scrutiny must be paid to this language.
  • Property & Debt Distribution – Sets forth the division and distribution of all marital property. Also clarifies property that has been determined by the parties to be separate (e.g. non-marital) and, as is usually the case, non-divisible. This section also clarifies how the parties’ debts will be handled during separation and post-divorce. In a divorce, the term “property” includes all assets: real estate, automobiles, bank accounts, investment accounts, stocks & bonds, businesses, antiques & collectibles, furniture, artwork, tools, etc. In Virginia, this is often referred to as the “E.D. Section”, which is short for “equitable distribution of property and debt”.

Other Key Components of a Property Settlement Agreement

Property Settlement Agreements in Virginia (and elsewhere) also include other very important information, such as:

  • Date of Separation – the date upon which the parties agree they began living “separate and apart”[1] (which may or may not be the date that one of the parties moved out of the marital residence);
  • No Fault Divorce – a clause that forbids either party to ever proceed with a divorce on contested grounds (e.g. desertion/abandonment, adultery, cruelty);
  • Waiver of Right to Discovery – a clarification (if appropriate) that the parties waived their right to discovery (the court-supervised process of gathering documents and information from “the other side” which is standard in most litigated divorces);
  • Taxes – a predetermination of how certain tax benefits and burdens will be divided between the parties (where appropriate, necessary and permitted by the IRS). Such items include: the dependency exemption for children, the child and dependent care credit, future filing status decisions while still married (e.g. married filing separately, married filing jointly), mortgage interest & real estate tax deductions, and future income tax refunds and liabilities.

There is No Such Thing as “Legal Separation” in Virginia – Property Settlement Agreements Resolve Some of the Resulting Confusion & Risk

In Virginia, there is no such as thing as “legal separation”. The closest that parties can come to legal separation is to actually live separate and apart (see footnote 1) and be in possession of a signed and notarized PSA.

Most attorneys advise their clients to never move out of the marital residence without the benefit of a PSA. The reason for this is two-fold:

  1. Risk – Setting Up Fault Ground of Desertion/Abandonment – Without a signed and notarized PSA, which clearly states that neither party is permitted to file a divorce on fault grounds, the party who leaves the marital residence is at risk of the other party proceeding with a divorce on the fault ground of desertion/abandonment. If the other party prevails, this could affect a judge’s ruling with regard to property and debt distribution. This risk is somewhat “academic”, however, according to many divorce professionals in the Northern Virginia Area, as long as the person who physically moves out of the marital residence continues to provide financial support “back home”. Also, and perhaps most concerning, fault-based divorces set in motion a defensive posture that ramps up the litigation and costs the parties dearly in terms of emotional strain and financial drain.
  2. Risk – Confusion in the Classification of Certain Property and Debt as Marital Property (divisible by a court) versus Separate Property (not divisible in court) – Virginia law states that all property and debt acquired post-separation is to be classified as separate property (non-marital, non-divisible by a court). It is usually best, therefore, for parties to clarify what they have, in terms of their property and debt, at the time of separation. To avoid often confusing, and sometimes very stressful situations later, parties are well-advised, once they have decided to separate, to determine, in detail, how and when their property and debt will be divided and distributed and what the values of their property, and balances on their debt instruments are, at the time of separation. It is also notable, however, that even though judges are required to classify post-separation assets and debts as separate (non-divisible) property, parties may choose to classify some or all of that post-separation property and debt as divisible marital property (as is the law in many other jurisdictions).

Property Settlement Agreements are Binding Contracts

            Once parties sign a PSA, they have entered into a binding contract that is not renegotiated at the time of divorce. The key agreements and pertinent sections of the PSA are incorporated into the Final Order of Divorce (e.g. the custodial care arrangements for the children, the amount of child support and spousal support to be paid, and the specifics of the division and distribution of property and debt). The signed and notarized PSA is filed with court, along with several other divorce documents (including the Final Order of Divorce, aka Divorce Decree). In essence, parties who have a signed PSA, during their period of separation, are operating under a contract; once those same parties are divorced, they are operating under both a contract and a court order (the Final Order of Divorce).

It is notable, however, that all matters related to children (custody, child support), are always modifiable if there is a material change in circumstances. Parties are not permitted to negotiate away this right.

Can a Property Settlement Agreement Ever Be Declared Invalid?

            Property Settlement Agreements, though usually upheld in court, may be declared void (i.e. “invalid”) and, therefore, unenforceable, under the same circumstances as are other contracts. Specifically:

  • No Capacity to Form a Contract – one or both parties lacked the capacity to form a contract (e.g. serious mental impairment);
  • Unconscionability – the contract is extremely unfair;
  • Too Much Pressure – one or both of the parties signed the contract under duress, as a result of coercion, and/or as a result of undue influence;
  • Factual Mistakes – there was a mutual mistake of fact(s)(unless it really doesn’t matter);
  • Illegal – the contract contains a violation of law or public policy; and/or
  • No Full Disclosure – there was a failure to provide all relevant factsthat would allow for informed decision-making with regard to the settlement terms (in a PSA, that usually means “financial facts“).

(Va. Code §8.01-581.26)

The last area is usually of the biggest concern in a Property Settlement Agreement – especially one that is signed without the benefit of formal discovery (the attorney-led and formalized process of collecting and reviewing documents and other information relevant to the case).  If it is determined that essential financial information, which would be necessary for one or both of the parties to make informed settlement decisions, was purposefully withheld, the Property Settlement Agreement will almost certainly be void (no good).

95% of Divorce Cases Settle Without Trial. Why Not Start With Settlement in Mind?

            The vast majority of cases — 95% being the most quoted statistic – never go to trial. That means that, after all the litigation strategy, motions, depositions, discovery, and very expensive legal wrangling, almost all divorcing couples end up settling their case without a trial.

Therefore, when all is said and done, if you are considering a divorce, or are in the process of getting a divorce, you might as well start with a settlement mentality and focus on reaching solutions to your divorce disputes that you both can live with before you engage in expensive and time-consuming litigation.

            The final result of your mutually agreeable solutions to your divorce-related issues will be in the form of an enforceable Property Settlement Agreement which, if written by a qualified lawyer-mediator, will be clear, enforceable, detailed, written in neutral language, and contain a minimum of “legalese”.

If you have any questions about what goes into drafting a Property Settlement Agreement and how Graine Mediation goes about settling divorce cases, call Robin Graine at 571-220-1998.

[1] In Virginia, parties with minor children must live “separate and apart”, without cohabitation (no marital relations) and without interruption, for 12 months before they are permitted to file for divorce. Va. Code §20-91. Without minor children, parties are permitted to get a divorce after only 6 months of separation as long as they have a signed Property Settlement Agreement. The term “separate and apart” is also interpreted, in Virginia, to mean that at least one of the parties intends that the separation be permanent. There is no actual law stating that the parties must live under separate roofs (though that is preferred by the Courts). This lack of clarity is bad enough on its own; but it compounded by the fact that Virginia law specifies that all property and debt acquired post-separation is separate property (aka non-marital and, as a result, is not divisible by a court).

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

How Divorce Affects Adolescent Children

November 18, 2014

Getting divorced is difficult. Getting divorced when you have teenagers… Well, it can feel impossible. Luckily, a lot of very smart people have said a lot of incredibly useful things to help you navigate these tricky situations. A must-read is by Carl Pickhardt, a psychologist and writer, entitled “Surviving Your (Child’s) Adolescence.”unhappy teen

He starts by describing the difference between the way a child who is under 9-years-old and a child who is 9 or older reacts to the divorce of their parents. While the younger child will tend to cling and show anxiety, the older child begins manifesting signs of independence and pulling away. Since it is already typical for an adolescent to test their independence, this confluence can be destructive, rather than developmentally beneficial for the child.

Pickhardt runs down the ways in which a divorce can affect the adolescent. They can put off committing to their own relationships, or keep things overly casual, in order to forego the same pain they saw in their parents’ relationship. It can make them uncertain about their own feelings toward a romantic partner, if their new frame of reference becomes, “Well, I thought my parents loved each other, but now I’m not sure.”

To avoid these mires and pitfalls, Pickhardt suggests what he calls “The Ten Articles of Consideration;” a list of ways that parents can interact positively with their adolescent children and assure them of their continued love, devotion, and foster trust. I highly recommend you check it out for yourself, especially if these problems sound all too familiar. As always, Fairfax Divorce Blog will be here to continue giving our own advice and pointing out helpful articles whenever we find them!

Posted by Jane Baber, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

How Mediation Can Help – Even When Divorce Litigation Is Pending

June 10, 2014

Divorce-MediaitonIf you are engaged in divorce, you may be battling your case in the traditional attorney-run court system. If this is your situation, but you yearn for a more civilized, less expensive method of settling your divorce matters, you can consider Mediation at any time in the process.

I see clients and settle cases at all stages of the separation and divorce process. For example:

  • Mediation works well in cases where attorneys are never involved;
  • Mediation works well in cases where attorneys are consulted prior to the mediation, but are not involved in the mediation process;
  • Mediation works well when attorney services are utilized only for review of the draft Settlement Agreement; and
  • Mediation works well when clients are deeply involved in litigation, but want to come up for air and try and settle their case in a more orderly, less contentious fashion.

Most clients don’t know that Virginia attorneys are required to advise their clients that there are alternative methods to resolve their disputes outside of litigation. (This mandate is pursuant to the Comment Section of Virginia Supreme Court Rule 1.2.) If your divorce attorney has not advised of you that there are Virginia Supreme Court Mediators ready to assist you with your divorce settlement needs, ask him or her if there is any reason why Mediation, or any other form of Alternative Dispute Resolution (ADR), is not appropriate for your circumstances.

Certain situations merit consideration of “taking a break” from litigation. You may wish to consider Mediation if:

  • Litigation is doing harm to your children.
  • Litigation is causing emotional turmoil and an inability to focus.
  • There is a need to feel that all “friendly” avenues were tried before either of you “pull the trigger” in court (and unleash a torrent of bad feelings that may last a lifetime);
  • You think if would be a good idea to treat the property and debt issues completely separate from the child-related issues.
  • You and your attorney no longer see eye to eye;
  • There is one single issue that is holding up the entire settlement;
  • Your attorney fees feel like the National Debt.

If you think Mediation is the way to go, give Robin Graine, JD, at Graine Mediation, a call: 571-220-1998. If you just want to learn more about Mediation, or if you want to discuss whether Mediation is right for your case, give Graine Mediation a call. Robin would be happy to answer you questions: 571-220-1998.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Virginia Divorce – Equitable Distribution of Pre-Marital Property after the David Case

June 3, 2014

In Virginia, property that is owned pre-marriage is known as “separate property”. Separate property may consist of:

  • tangible assets (e.g. automobiles, antiques, furniture),
  • liquid assets (e.g. bank accounts, mutual funds, stocks),
  • retirement assets (e.g., 401(k)s, TSPs, IRAs, pensions),
  • real estate, and
  • business interests

Under §20-107.3 of the Virginia Code, the spouse who came into the marriage with the separate property is permitted to keep that property as his or her own individual property. That means that the separate property will not become part of the marital estate upon divorce and will not, therefore, be eligible for division and distribution by the court.

Contrary to many people’s belief, in Virginia, even the increase in value of a spouse’s separate property is also considered that spouse’s separate property. There are, however, exceptions. The increase in value of separate property is considered marital property (divisible and distributable by the court):

(1) to the extent that either one or both of the parties, during the course of the marriage, exerted significant efforts with regard to that separate property (e.g. blood, sweat and tears; time spent in the management of that separate property)


(2) to the extent that there is a substantial increase in the value of the separate property.

In a court of law, there are different burdens of proof assigned to the parties. That means that the spouse who originally owned the separate property, as well as the other spouse, have a particular set of facts to prove, with evidence, before a court will rule in that spouse’s favor. (Think of “burden of proof” as “burden to prove”). In Virginia, the burden of proof is on the non-owning spouse to prove that the marital efforts (the efforts of one or both of them) were significant and that the property increased the value, during the marriage, by a substantial amount. Until the recent Virginia Supreme Court case of David v. David, (Va., 2014)http://caselaw.findlaw.com/va-supreme-court/1658789.html, the non owning spouse was also looked to for proof that the cause of the increase in the value of that asset was, in fact, directly related to the efforts of one or both of the spouses during the marriage[1].   This is no longer true after the David case. David clarified this area of the law (even though, on its face the statute seems to have always said this!) and the burden of proof now squarely sits on the shoulders of the spouse with the separate property interest to show that his or her efforts were not, in fact, the direct cause of the increase in value of the property.

For example: Husband owned a business prior to the marriage. During the marriage he worked like a dog (significant efforts!) on the business. When the business was valued at the time of the separation and divorce, it was clear that it had increased substantially in value during the course of the marriage. Under the old way the Virginia courts viewed the law, the wife would have had the burden to show that it was the Husband’s efforts – directly – that increased the value of the property.  Since David, however, the burden has shifted. It is now the separate property owner (the Husband, in this example) that has to prove that his efforts did not, in fact, increase the value of the asset.  All the Wife needs do is show (her burden of proof) that (1) the Husband exerted significant efforts; and (b) that the business went up in value.

Whenever there is an issue of hybrid property in a divorce case, it is best to seek the advice of a professional: a lawyer-mediator and/or an experienced divorce attorney.


Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


[1] In Virginia, “during the marriage” means from the date of marriage to the date of separation (either adjudicated by a court or agreed to by the parties). Many other jurisdictions define “during the marriage” to also include the period of time between the parties’ separation and divorce. In mediation, clients are free to define “during the marriage” either way and, sometimes, define “during the marriage” to include that period of time between the date of marriage and the date of the first mediation session.

Some Things Never Change

November 19, 2013

changeThinking you can change your partner is a classic pitfall in many marriages. Though you can sometimes learn to deal with the foibles and flaws of your partner, some disagreeable habits and personality traits of your spouse can become too much to take, and you wind up in the divorce mediator or lawyer’s office.  If only your spouse could just change a little . . .

Don’t bet on it! Most psychologists will tell you that it is only in the rarest of circumstances that a person will change because of something you say. Chances are, they’ve already been told by others what their flaws are, and your gentle nagging is unlikely to be sound any different. Often, it’s those preexisting problems that ultimately lead to divorce, when you come to the realization that they aren’t changing.

As individuals, it’s important to remember that we can only control our own actions. We can hope to effect change in others, but it’s no more than a wish or a prayer. This is particularly important to remember when divorce proceedings begin. For ultimate success in a divorce settlement, it pays to be goal-oriented and to divest yourself of any notions of that you can change your partner’s behavior. A person is only going to change if they want to (but that’s what marriage counseling is about, not divorce mediation). Once you are in the mediator’s office or the courthouse, it’s usually too late.

This may sound grim or harsh, but it’s important to understand the reality of human nature so that you can best move forward. Accepting that the only person you can change is yourself will help you move through the divorce mediation and settlement process more efficiently. You can take the time you would have spent obsessing over how your partner needs to change to think, instead, about how you might implement some changes to become a happier, healthier individual in your new single life.

Posted by Jane Baber, Mediation Assistant and Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Tips for Writing a Child-Centered Parenting Agreement

October 29, 2013

In cases where parents choose to share the custodial care of their children, it can be tricky to map out the best way to split up your children’s time between both parents. The hackneyed “every other weekend” may have worked in the past, but I rarely see this as a desired outcome for my clients in my mediation practice.   We now know so much more about the positive aspects of children having two involved parents – and both parents usually have work obligations outside of the home – that having both parents involved makes the most sense. When deciding how best to share the custodial care of your children, there are a lot of variables that you should take into account before committing to those parenting arrangements in the form of a court enforceable Settlement Agreement.

1. Should you get your child involved?  You know your child better than anyone, so ask yourself, “Are they mature enough to formulate an opinion on this matter?” Sometimes it is good just to let them know they are being heard, even if you ultimately don’t follow their wishes. In your conversation with them, let them know that they are important, but that the parents are going to have the final say in what’s best for them.

2.  Will the arrangement allow for the child to develop strong bonds with both parents? Children who have strong bonds with both parents seem to do better in life; at least in terms of their ability to form strong relationships with other people and, in particular, in their own marriages and romantic endeavors as they grow up. In order to form these parent-child bonds, it is important that children be given adequate time to bond with both parents. Sometimes, this means planning quality time rather than focusing on the quantity. For instance, a 60+ hour a week professional parent may not actually have the time to be a weekday custodial caretaker.  That parent may only see his or her children off to school, but won’t be home until long after they are in bed. Perhaps in this case, it is better to focus on the quality time, ie. Being a “weekend parent” when there is free time to be attentive.  (Note: There is a lot of discussion in mediation about whether a hard working parent’s mom (“grandma”) is a good substitute when that parent is unable to get home from work.  Though this may be good for everyone, it doesn’t meet the goal of “bonding” with a parent and these types of situations must be considered on a case-by-case basis.)

3. Is the arrangement conducive for the child’s learning and growth? If your child is always stressed out because he or she feels bounced around between locations, their ability to absorb both your and the school’s teachings may be adversely affected. It is true that children need structure, the key reason behind writing a Parenting Arrangement in the first place. But stress can be cumulative and take some time to show in your child; that is why it is necessary to be on the lookout for it from the get-go.  Parents who choose to have their children live in two separate homes must be on the alert to whether the stress caused by living in two different homes is balanced by the benefits of having two involved parents in the child’s life.   Sometimes it is; sometimes it is not.

4. What kind of children do you have? This is the type of question that the courts do not have the resources or time to answer. You and your ex-spouse need to ask yourselves these kinds of questions: Do each of your children need to be on precisely the same schedule?  Would a somewhat divergent schedule based on the children’s age, etc. allow for needed one-on-one time with each parent? Is your child organized? A little scattered?  Can he or she handle the back and forth and keep track of his or her homework? Do your kids have a great need for down-time?  Do they roll with things easily?  Does it take them a while to get settled in to do their homework?  Are they anxious?  Carefree?  With whom do they talk about their problems (if either of you)? Do they need a lot of discipline?  Who is the disciplinarian? Is your child more bonded to one his or her parents than the other? Would spending days away from one or the other of you be devastating to them?

It can seem like a lot of work to figure out a good parenting arrangement agreement, because it is. Be aware that it should be a flexible agreement as you monitor your children and their responses. While kids can seem resilient, what happens to them as children will shape them as adults. If they don’t get the chance to bond with one of their parents, it may manifest itself in romantic relationship problems later in life. Moreover, their stress may keep them from growing in school, which is a possible foreshadowing of how well they may do in the job market.

None of this is said to frighten you, but rather to give you some tools to effectively craft a Settlement Agreement with your soon-to-be ex-spouse that is in the best interest of your children. Every family is different in the details, but if you offer your children love, a sense of safety, and emotional support, the odds are in your favor that your children will do just fine.

Written by Jane Baber, Mediation Assistant, and Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


What is “Equitable distribution of property”?

May 21, 2013


Equitable Distribution is the legal term for how judges, in Virginia (and 39 other states), divide and distribute property and debt in a divorce.  “Equitable” means “fair”, not “equal”. . .  so you know you are in some tricky territory right there.  “Fair” is hardly clear.   States that actually divide marital property on a 50%/50% basis are called community property states.[1]  No matter what you read or hear, Virginia is not a 50%/50% state when it comes to the division of real estate, retirement plans, bank accounts, furniture, credit card debt, automobile loans, or anything other type of property or debt.

Though Virginia is not a community property state, property and debt division in a Virginia divorce often ends up in the neighborhood of 50%/50%, in the end. The judges have 11 criteria that they are required, by law, to consider before order the division and distribution of property in Virginia.  It is the job of the divorce attorneys to convince the judge – and each other – that their client deserves a bigger piece of the asset pie (and, of course, a smaller piece of debt pie), based on those 11 criteria.


Virginia judges have 11 criteria that must be considered when making a ruling in an equitable distribution situation? 

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

2.  The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of the 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 the marriage;

6.  The time period and circumstances of when and how specific items of property were acquired;

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

8.  The liquid or non-liquid character of all marital property;

9.  The tax consequences to each party under differing distribution options;

10. The use or expenditure of marital property by either of the parties for a non-marital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the parties deemed necessary and appropriate to consider in order to arrive at a fair and equitable distribution of their marital property and debt.

                   (from §20-107.3 of the  Virginia Code, Ann, 1950)            

However, as previously stated, it is not uncommon, when all is said and done, for a Virginia divorce case to end up in the neighborhood of 50%/50%.  That being said, why not start there and move out from that center point, depending on the facts and circumstances of the case?  The answer is, for the most part, cultural.  That is not how, in our country, most attorneys (and business people) negotiate.  The prevailing wisdom is that a negotiator needs to start by asking “for the moon”, and hope that the negotiation eventually brings the opposing parties to a point that is somewhere closer to the middle, but still weighted to the client’s advantage.  That is not, however, very efficient.  It is also very expensive and  often causes a lot of ill will between the parties who, most of the time, are also parents of the same children.


A more contemporary approach, and one that is reflective of many mediation practices, is to start with a 50%/50% mentality and then, through the process of assisted negotiation, help the clients work their way out from that center point based on the particularities presented by their case.  The factors considered by the parties do not tend to differ much from the judge’s list, but it is the start point – the negotiating mindset – that is different. 

Also, for many divorcing parties, it is simply too expensive, time consuming and gut wrenching to start at a polar extreme and then try and prove why your position is correct and the other party’s position is wrong.  Most judges are of the belief that divorce is a two-way street and that neither party is probably 100% right.  Justice and the truth usually lie somewhere toward the middle – so why not start there and save yourself some money and aggravation? It’s a thought worth pondering.

For example:

MEDIATION: $100,000 to divide.  50%/50% with $4,000 in mediation fees  = $96,000 to divide  =

                  $48,000 for Wife and $48,000 for Husband.

LITIGATION: $100,000 to divide.  60% to Wife = $60,000 – $20,000 in attorneys fees; 40% to Husband =  $40,000 – $20,000 in attorneys fees

                  $40,000 for Wife and $20,000 for Husband


How is the concept of Equitable Distribution applied in mediation?

Usually, in mediation, the parties themselves determine what the criteria will be for equitably dividing their property.  They might not be as formal in their thinking and in the way that they assign weight to the various criteria as a judge would be, but they know what feels right and why.  There are sometimes trade offs and things bargained for in a mediation that might not occur in a courtroom.  What is fair to one couple may not work for another.

Parties in mediation are free to toss out certain criteria that they do not think fits their particular set of facts, or may be antithetic to their values and/or general sense of fairness. The effect of that is to streamline and personalize the negotiations for those parties’ parties particular set of facts and sensibilities.

Goals, Needs & Fears

It is important, in a mediation,  for the mediator to understsand what the parties’ goals, needs and fears are so that negotiations can be tailored to address those goals, needs and fears.  It is appropriate in mediation to sift through those goals, needs and fears and determine which requests are based on “the principal of the matter” and “concepts of punishment”.  Mediation tends to focus on tangible settlement prospects, such as the ability to support oneself, figuring out how to pay for the children’s college, getting one’s career underway, having a time for healing, digging through the potential tax aspects of various settlement options, etc.  In mediation, we call this “issue spotting” and it is this type of focus on what can actually be settled in a divorce (as opposed to “getting even”, which rarely works) that often saves clients tons of money and the traumatic effects of contested litigation.


The Law

Before dividing and distributing property and debt in a court or mediated divorce case, there must first be decisions made with regard to whether the property and debt in question is to be classified as marital, non-marital or hybrid (some of each).  Marital property is divisible by the courts, non-marital is not (the marital portion of hybrid property is divisible, the non-marital portion is not.)

Couples in mediation are always informed of the law with regard to classification – marital property is that which is acquired/earned during the marriage, while non marital property is that which is acquired prior to the marriage, after the separation, inherited, or received as a gift to one the spouses (individually).

Classification of Property in Mediation

Most clients, in mediation, tend to draw fairly clear lines, in terms of classification, and do not seek to extract nonmarital property from marital property.  For example, I don’t often see clients arguing for a return of a downpayment they made on the marital residence from their nonmarital money.  They usually consider that downpayment to have been a gift (a key legal point) from them to the marriage. Also, I rarely see clients arguing mightily over the return of nonmarital money which was put into a joint account that the parties referred to, during the marriage, as the “nest egg”, the “retirement”, “our savings”, etc.

This is true even though Virginia law allows for great latitude in these types of situations, and is fairly protective of the spouse who put his or her non-marital money into the marital pot – as long as it was not a gift which, many people think, requires a fairly light standard of evidence to prove, in Virginia. For example, there is no presumption that nonmarital property, put into the joint names of a married couple, is converted to marital property.  (Unimaginable in many other jurisdictions, but that is law in Virginia).  Nonetheless, in my experience, most mediation clients do not see it that way and do not choose not to fight over whether or not those non-marital+marital cominglings  were or were not gifts.

Considerations when Classifying Property & Debt and Equitably Dividing & Distributing Property in Mediation

In classifying and, ultimately, dividing and distributing property and debt in a mediation setting, clients often consider the following (which are very similar to the criteria a judge must consider in equitably dividing and distributing property and debt, in Virginia):

  • Is the marriage of long duration?  If so, contributions of non-marital property to marital property often become less relevant as time goes on;
  • Does the client value the concept of generosity? (This is not, necessarily, a bad thing as long as it does the generous party no serious harm);
  • Is there a desire, for emotional, psychological, and/or financial reasons,  to “get it over with”? (This can be legitimate if the party in the hurry will not be harmed to any great degree)
  • Do one or both of the parties forsee a positive future financial projection for him/herself?  Negative financial projection?  Why?  What about for the other party?  Why?
  • Was there a clear division of labor in marriage? Of what effect did that have on career development?  The well-being of the children?
  • Are there perceived equal/unequal contributions to the marriage (financial or otherwise),
  • Do either of the parties have access to other non-marital assets?
  • Is it appropriate for there to be “pay back” for negative/positive behavior during the marriage?
  • Is there a mutual belief that nonmarital property comingled with marital property is actually a gift to the marriage?

It is important to remember that, in Virginia, judges are not permitted to order the division and distribution of non-marital property.  Only in settlement may parties choose to share non-nonmarital property, if that is their desire.  Mediation frees parties to settle a case – after being fully informed of their legal rights – on their own principals of fairness and equity and not have their property and debt divided and distributed based on a judge’s restricted ability to assess and weight what is fair and equitable in their situation.  The price tag differential, too, between contested litigation and mediated settlements is a factor for consideration that is not on the judge’s list.  It should, however, be on your list when are thinking about divorce.

[1] Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico are all community property states.

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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