Divorce Law And Determining Property

Recently, a Fairfax County Circuit Judge–Richard Gardiner–came under heat for determining that frozen human embryos should be considered property in a divorce. His claim is based on a 19th-century law that determined how slave owners should treat their slaves and whether humans could own other humans. In using this ruling, many people have slammed the judge for failing to use modern laws to solve a problem between a divorcing couple and instead propelling Virginians back to a darker time when it was common for one human to own another. Initially, Judge Gardiner sided with the husband in the divorce proceedings who did not want his ex-wife to use the embryos. Since one cannot buy or sell embryos, it seemed obvious that they could not be claimed by one spouse.


However, when the wife’s lawyer asked the judge to reconsider, he dived deeper into the law and applied a ruling that was applicable to slaves before the Civil War. In researching this law, he decided to apply what he found to human embryos. The husband’s lawyers continue to argue that if his wife is allowed to implant the embryos after the divorce then this is forcing the husband to procreate against his wishes. His wife, on the other hand, argues that she has the right to use these embryos since she was rendered infertile due to cancer treatment and this is her only option to have children. This brings to light the lack of laws regarding human embryo use during and after divorce proceedings and how certain outdated and antiquated laws can be twisted to support the idea that these human embryos could be considered “goods and chattels.”


Filing For Divorce in Virginia 


Getting a divorce no matter the circumstances is difficult. When you are trying to divide up property, it can make emotions run high as both parties want to ensure they are getting what is fair to them and what has sentimental value. During a divorce, the property will be divided based on whether it is considered to be marital property or separate property. Divorce can make property lines confusing, but separate property is considered to be the property that people came into the marriage with or property that is specifically gifted or inherited. As a Fairfax, VA divorce lawyer from May Law, LLP knows, marital property is the property that the couple acquires during marriage. 


A judge in Virginia will attempt to divide property and assets fairly. If you are getting a divorce, it is crucial that you speak openly with your lawyer about what kind of property you have and what you are hoping to leave your marriage with. Your lawyer can help ensure that property is fairly distributed and can fight for what is important. If you are preparing to go through a divorce and are concerned that your property will go to your spouse, it is crucial that you work with a lawyer who will represent you during this difficult period. When you are ready, call your local office to see how a divorce lawyer can help you.

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