Marital and separate property are well defined in VA. Property titled in the names of both a husband and a wife and all other property acquired by either of them "during the marriage which is not separate property" is marital property. Code § 20-107.3(A)(2). Property acquired by either spouse "during the marriage, and before the last separation of the parties," is presumed to be marital property. Id. Separate property is that acquired by either party (1) "before the marriage," (2) "during the marriage by bequest, devise, descent, survivorship
, or gift" from someone other than the other spouse and (3) "during the marriage in exchange for or from the proceeds of sale of separate property," if maintained as separate property. Code § 20-107.3(A)(1). Dietz v. Dietz, 17 Va. App. 203, 208-09, 436 S.E.2d 463, 467 (1993) (footnotes omitted).
Code § 20-107.3(A)(3)(a) specifically provides that the increase in value of separate property that occurs during marriage "shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases." Further, "a marriage will be deemed to have ended for purposes of classifying property as marital on the date of the last separation." Dietz, 17 Va. App. at 209-10, 436 S.E.2d at 467.
When the defunct partnership is dissolved, the property acquired through partnership contributions must be identified and classified as marital property. Code § 20-107.3(A)(2)(i); Mitchell v. Mitchell, 4 Va. App. 113, 117, 355 S.E.2d 18,  (1987). . . . Generally, property acquired by one partner after the last separation when "at least one of the parties intends that the separation be permanent" is not "acquired . . . during the marriage" or as part of the marital partnership and will not be marital property, unless it was obtained, at least in part, with marital funds. See Price [v. Price], 4 Va. App. [224,] 231-32, 355 S.E.2d [905,] 909 [(1987)]. Property acquired by one partner totally separate and apart from the marital partnership does not imbue the other partner or spouse with rights and equities in such property. Where partnership efforts have contributed nothing to the acquisition or maintenance or preservation of the property, no basis exists for its being classified as a marital asset.
In Tucker v. Wilmoth-Tucker, Record No. 2008-09-2 (Va. App., 2010), the court held that any increase in value of shares after the date of the last separation intended by at least one party to be permanent was separate property and not to be divided. Thus, the value of the 401K would be determined as of the date of your last permanent separation date.
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