West Virginia Divorce: Dividing Property

Find out how marital assets and debts are divided in a West Virginia divorce case.

Property Division in West Virginia

When a couple divorces in West Virginia, the court will divide the marital property based on equitable distribution.  Equitable division does not have to be equal, but the court must start by presuming that all the marital property will be split equally between the spouses. From there, a set of factors will be considered that may result in a shift in the balance from one spouse to the other. Ultimately, the result must be a fair division that reflects the past efforts and future needs of both spouses.

Only Marital Property will be Divided

In a divorce, the distribution of property depends on which property belongs to the marriage – marital property – and which property belongs to each of the two spouses – separate property. Generally, marital property is property acquired or earned during the marriage. Separate property is property that belonged only to one spouse before marriage. It could also include some property given only to one spouse during the marriage, like a gift of a classic car from the husband’s brother to the husband alone or an inheritance upon the death of the wife’s great aunt to the wife alone.

The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and benefits. Marital property must be divided between the spouses when the marriage ends. Separate property remains in the hands of the spouse who owned it before or during the marriage.   

Factors for Division of Property

To determine whether the presumption of equal division should be adjusted, the court will look at both monetary and non-monetary contributions to the marriage. Monetary contributions include any property a spouse brought to the marriage (other than separate property) and any appreciation in the value of that property. This factor also includes income and the use of separate funds for the benefit of the marriage. Non-monetary contributions include homemaking, child-care services, and other unpaid work. Additional factors include contributions to one spouse’s education or training, or conversely, lost opportunities to increase earning capacity. Although the court can increase one spouse’s share if the other spouse did something to depreciate the value of the marital property, it cannot decrease a spouse’s property interest because that spouse was at fault in ending the marriage.

Throughout the process, the divorcing spouses will have opportunities to agree between themselves on what is a fair division. If they decide, for example, to sell the house and split the sale proceeds, let the wife keep her retirement benefits and give the husband the family cabin, then they could submit their wishes to the court in a separation agreement. In most cases, a court will accept this type of agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them.

Spousal Support Determined Separately

Spousal support is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one they had during marriage. In West Virginia, an award of spousal support does not impact the amount of marital property a spouse will receive. It's possible, however, that a spousal support award could affect the separate property of the paying spouse, because spousal support is based on income. If the paying spouse does not earn enough to cover a fair support payment, then the court can order that spouse’s separate property to be used to satisfy the payment.  

Though it's not relevant to the division of marital property, a spouse who is at fault in ending the marriage may pay a higher support amount as a result, or find support reduced for that reason. 

Sources

You can read the law on division of property at the West Virginia Code §§ 48-7-101-104. For information on spousal support, see §§ 48-8-101-104.

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