7.5 Determining Title, Ownership, Value, Rights, and Interests

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

7.5 DETERMINING TITLE, OWNERSHIP, VALUE, RIGHTS, AND INTERESTS

7.501 In General. The court must determine the following with respect to all property of the parties, real or personal, tangible or intangible: (i) the legal title as between the parties; (ii) the ownership; and (iii) the value. ⁵¹ In addition, the court must determine the rights and interests of each party in the marital property. ⁵² The court will recognize the division that exists in the marital property based on its title. The court also will determine as between the parties their respective rights and interests in the marital property no matter how titled. ⁵³

Both parties have rights and interests in the marital property; but the rights and interests do not attach to the legal title of the property and are only to be used as a consideration in determining a monetary award, if any. ⁵⁴ Section 20-107.3 does not affect the legal interests each owner has in jointly owned property. ⁵⁵

7.502 Valuation.

A. Evidence of Value. The parties must produce satisfactory evidence concerning the value of all property to be considered by the court. ⁵⁶ An owner of property may express an opinion as to its value. ⁵⁷ In attempting to persuade the court that the value of a particular asset should be discounted due to the tax consequences of its sale, a party must prove the

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probability of an actual, not merely hypothetical, sale of the asset. ⁵⁸ This may entail the use of accountants, appraisers, and other expert witnesses. ⁵⁹ Different methods may be used to value different types of property. For example, in Bosserman v. Bosserman, ⁶⁰ the court explained that there is no uniform rule for valuing stock in closely held corporations. The method used must reflect the individual factors presented in each case. Likewise, different methods may be applied in valuing the goodwill of a professional practice. ⁶¹ Where expert evidence concerning value is in conflict, the court may weigh the different opinions in reaching its decision. ⁶²

B. Instructing the Appraiser. When property may be classified as part separate and part marital property, the trial court will need values concerning the portion of the property that is separate property as well as the portion of the property that is marital property. For example, consider a house that was the separate property of the husband before the marriage but was improved during the marriage with the use of marital funds. If the value of the house appreciated significantly after the additions were made and if the additions were paid for with marital funds, a portion of the value of the house is marital property. A proportional formula may be applied to determine how much of the appreciated value after the date of the marriage is accounted for by the contributions of marital property to the house. ⁶³

The appraiser retained to appraise the value of the house should be instructed by the attorney to determine...